Lesbian/Gay Law Notes Podcast

Transcription

LAW NOTES
L
E
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Y
April 2014
ENTIRELY
UNBELIEVABLE
Federal Judge Rejects Trial Testimony of Michigan’s
“Experts” and Strikes Down Another Marriage Ban
© 2014 Lesbian/Gay Law Notes & the Lesbian/Gay Law Notes Podcast are Publications of the LeGaL Foundation.
LAW NOTES
L
EXECUTIVE SUMMARY
131 Michigan Ruling Adds to Unbroken
String of Marriage Equality Victories
134 Civilly Committed Inmate Loses
Transgender Treatment Claims
135 Transgender Inmate’s Medical Case
Survives Qualified Immunity Defense
136 Massachusetts Appeals Court Affirms
Jury’s Rejection of Gay Man’s Tort Claims
against Former Partner
137 Federal Court Requires Tennessee to
Recognize Same-Sex Marriages of Three
Couples
138 Federal Judge Grants Summary
Judgment against Gay Man Who Wore
Loincloth to Windy San Diego Pride
139 NY Judge Orders City to Pay for
Transgender Youth’s Surgery
141 State Court Affirms Model’s Right to Sue
for Unauthorized Use of Her Photo in an
AIDS Public Service Advertisement
143 N.Y. Appellate Panel Finds Discharge is
Disproportionate Penalty for Teachers
Accused of Having Lesbian Sex in a
Classroom
144 Federal Judge Rejects Delay in
Wisconsin Marriage Equality Case
146 Must Employee Disclose HIVPositive Status on Employer Medical
Questionnaire?
147 Ohio Appeals Court Reaffirms Lack of
Protection for Gay People under State
Law
148 Notes
175 Citations
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Editor-In-Chief
Prof. Arthur S. Leonard
New York Law School
185 West Broadway
New York, NY 10013
(212) 431-2156
[email protected]
[email protected]
Contributors
David Buchanan, SC
Bryan Johnson, Esq.
Gillad Matiteyahu, NYLS ‘13
Parul Nanavati, NYLS ‘15
William J. Rold, Esq.
Tara Scavo, Esq.
Matthew Skinner, Esq.
Brad Snyder, Esq.
Prof. Robert Wintemute
Production Manager
Leah Harper
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© 2014
The LeGaL Foundation
of the LGBT Bar Association
of Greater New York
http://le-gal.org
ISSN
8755-9021
Lesbian/Gay Law Notes welcomes authors interested in
becoming a contributor to the publication
to contact [email protected].
Michigan Ruling Adds to Unbroken String of
Marriage Equality Victories
S
enior U.S. District Judge Bernard
A. Friedman ruled on March
21 that the Michigan Marriage
Amendment (MMA) and the statutes
that implement it, prohibiting samesex marriages in Michigan, violate
the Equal Protection Clause of the
14th Amendment. Judge Friedman
ordered the state to stop enforcing the
ban, not mentioning Attorney General
Bill Schuette’s request that any ruling
in favor of the plaintiffs be stayed
pending appeal. The case is DeBoer v.
Snyder, 2014 U.S. Dist. LEXIS 37274,
2014 WL 1100794 (E.D. Mich., March
21, 2014). The plaintiffs, April DeBoer
and Jane Rowse, started the case in an
effort to adopt each other’s children,
but expanded it to challenge the state’s
appeal to that court, which was already
facing actual or potential appeals of
marriage recognition rulings from
three other states: Ohio, Kentucky
and Tennessee. County clerk offices
in Oakland, Washtenaw, Ingham and
Muskegon Counties, whose offices
are normally closed on the weekend,
opened on Saturday morning, March
22, to issue marriage licenses to samesex couples, and 315 same-sex couples
obtained licenses before the 6th Circuit
issued an order in the afternoon,
temporarily staying the district court’s
opinion until Wednesday, March 26, “to
allow a more reasoned consideration
of the motion to stay.” The 6th Circuit
also requested the plaintiffs to respond
to Schuette’s emergency petition by
John M. Rogers and Kentucky District
Chief Judge Karen K. Caldwell, saw
the panel as bound to strike the same
balance of equities that had implicitly
been struck by the Supreme Court in
its unexplained decision to grant a
stay in the Utah marriage equality
case. The majority, after reviewing the
factors that 6th Circuit courts normally
apply to the question of a stay pending
appeal, said “these factors balance no
differently than they did” in the Utah
case. Dissenting Circuit Judge Helene
White, finding that the unexplained
Supreme Court order provided “little
guidance,” considered the factors
and said the state had not made the
“requisite showing” and thus that “a
stay is not warranted.”
Late on March 25, the 6th Circuit panel released its 2-1 decision granting
the motion for a stay pending the court of appeals’ ruling on the merits.
marriage ban on the invitation of Judge
Friedman, who concluded early in the
litigation that the immediate statutory
obstacle to the desired adoptions was
that the plaintiffs could not marry each
other. Judge Friedman’s Order has
been stayed by the 6th Circuit pending
its ruling on the merits of the state’s
appeal.
Counsel for the state requested
at the close of the trial that the court
stay its ruling pending appeal if the
court decided for the plaintiffs. Judge
Friedman made no mention of this in
his opinion, which he released shortly
after business hours on a Friday, so
county clerk offices around the state
were already closed for the weekend
and marriage licenses could not be
immediately issued. Attorney General
Schuette quickly filed an “emergency”
petition with the 6th Circuit for a stay
of the ruling while the state prepared to
noon on Tuesday, March 25, thus
giving itself a day to decide whether to
extend the stay further. Meanwhile, the
governor’s office responded to media
inquiries by stating that until the issue
of the stay was resolved, the state and
its agencies would not be recognizing
the marriages that were celebrated on
March 22 for purposes of state rights
and benefits. However, on March 28
U.S. Attorney General Eric Holder
announced that the federal government
would recognize those marriages for
purposes of federal rights and benefits
to the same extent that it recognizes
other same-sex marriages that were
legal when and where they were
celebrated.
Late on March 25, the 6th Circuit
panel released its 2-1 decision granting
the motion for a stay pending the court
of appeals’ ruling on the merits. The
majority of the panel, Circuit Judge
Gov. Rick Snyder reacted to the
6th Circuit’s action with a statement
released on March 26, conceding that
the 315 licenses issued on March 22
were valid and the marriages were
legal, but that as long as the stay was
in effect the state could not officially
recognize those marriages, thus
implicitly inviting the kind of lawsuit
that the ACLU has filed in Utah on
behalf of married same-sex couples
who are being denied recognition
of their marriages while the stay of
Judge Shelby’s Order in that state is in
effect. Snyder’s announcement stirred
controversy on both sides of the issue,
some conservatives arguing that the
governor should not have conceded that
the marriages are legal unless and until
the appellate courts affirm Friedman’s
ruling, while marriage equality
supporters argued that Snyder’s
concession, coupled with the refusal
April 2014 Lesbian / Gay Law Notes 131
to extend all state marriage benefits to
the couples who have married, violated
the state’s equal protection obligation,
clearly spelled out in Windsor, to treat
all legally contracted marriages the
same.
Judge Friedman’s ruling in DeBoer
v. Snyder was the first federal marriage
equality ruling since last spring’s
Supreme Court decision in United
States v. Windsor to be based on a
trial record. Friedman had previously
denied a motion for summary judgment
filed by the plaintiffs, finding that
because the rational basis standard for
evaluating claims of sexual orientation
discrimination is mandated by 6th
Circuit precedent he should allow
the parties to put on evidence on the
question whether the marriage ban
is rationally related to a legitimate
governmental purpose. Friedman
expert witnesses whose testimony was
summarized and evaluated in Judge
Friedman’s opinion.
Judge Friedman found believable
and credible the testimony presented
by the plaintiffs’ experts, psychologist
David Brodzinsky, sociologist Michael
Rosenfeld, law professor Vivek
Sankaran, historian Nancy Cott, and
demographer Gary Gates. These
experts showed that same-sex couples
are competent parents whose children
experience outcomes essentially the
same as those achieved by the children
of married different-sex couples, that
historically marriage licenses have
not been withheld from couples who
are unable or unwilling to procreate,
marriage has not been denied to
particular classes of prospective
parents based on any evidence that
they produce inferior outcomes for
“The Court finds Regnerus’s testimony entirely
unbelievable and not worthy of serious
consideration,” wrote Judge Friedman.
found that this standard was not met.
In so doing, he emphatically rejected
the expert testimony presented by the
state, most particularly the testimony
of University of Texas Professor
Mark Regnerus, which Friedman
characterized as “unbelievable.”
In support of a prior motion for
summary judgment filed by the state
and rejected by Friedman, the state had
advanced four alleged “legitimate state
interests” in support of its marriage
ban: providing an optimal environment
for child rearing; proceeding with
caution before altering the traditional
definition of marriage; upholding
tradition and morality, and relying
upon the argument that defining
marriage is “within the exclusive
purview of the state’s police power.”
The trial was devoted almost entirely to
the first of these, both sides presenting
their children, and that thousands of
same-sex couples in Michigan were
raising thousands of children who were
being disadvantaged by the denial of
marriage to their parents. Friedman
also heard evidence from one of the
defendants, Oakland County Clerk
Lisa Brown, who he noted in a footnote
“has adopted plaintiffs’ legal position
challenging the MMA.” Brown
testified to the minimal requirements
for obtaining a marriage license in
Michigan, which do not include any
proof of ability or intention to procreate
and do not generally disqualify people
because of characteristics — such as a
criminal record — which might suggest
problems about their ability to provide
an appropriate home environment for
children.
Next Judge Friedman turned to the
state’s “experts.” One can put that word
132 Lesbian / Gay Law Notes April 2014
in quotation marks because Friedman
rejected their testimony, finding it
unbelievable and not credible.
Professor Regnerus was the lead
expert witness for the state, basing his
testimony on his 2012 paper, “New
Family Structures Study” published
in Social Science Research. Friedman
summarized Regnerus’s testimony
and the testimony criticizing his
study by the plaintiffs’ experts, and
concluded that Regnerus’s opinions
should be totally rejected. “The Court
finds Regnerus’s testimony entirely
unbelievable and not worthy of
serious consideration,” wrote Judge
Friedman. “The evidence adduced at
trial demonstrated that his 2012 ‘study’
was hastily concocted at the behest of
a third-party funder, which found it
‘essential that the necessary data be
gathered to settle the question in the
forum of public debate about what
kinds of family arrangement are best
for society’ and which ‘was confident
that the traditional understanding of
marriage will be vindicated by this
study.’ In the funder’s view, ‘the future
of the institution of marriage at this
moment is very uncertain’ and ‘proper
research’ was needed to counter the
many studies showing no differences
in child outcomes. The funder also
stated that ‘this is a project where
time is of the essence.’ Time was of
the essence at the time of the funder’s
comments in April 2011, and when Dr.
Regnerus published the NFSS in 2012,
because decisions such as Perry v.
Schwarzenegger and Windsor v. United
States were threatening the funder’s
concept of ‘the institution of marriage.’
“While Regnerus maintained that
the funding source did not affect
his impartiality as a researcher,”
continued Friedman, “the Court finds
this testimony unbelievable. The
funder clearly wanted a certain result,
and Regnerus obliged. Additionally,
the NFSS is flawed on its face, as it
purported to study ‘a large, random
sample of American young adults (ages
18-39) who were raised in different
types of family arrangements,’ but
in fact it did not study this at all, as
Regnerus equated being raised by a
same-sex couple with having ever lived
with a parent who had a ‘romantic
relationship with someone of the same
sex’ for any length of time. Whatever
Regnerus may have found in this ‘study,’
he certainly cannot purport to have
undertaken a scholarly research effort
to compare the outcomes of children
raised by same-sex couples with those
of children raised by heterosexual
couples. It is no wonder that the
NFSS has been widely and severely
criticized by other scholars, and that
Regnerus’s own sociology department
at the University of Texas has distanced
itself from the NFSS in particular and
Dr. Regnerus’s views in general and
reaffirmed the aforementioned APA
position statement.” The reference
is to a statement by the American
Psychological Association asserting
that there is essentially no difference
in outcome between children raised by
comparable same-sex and different-sex
couples.
Judge Friedman was similarly
dismissive of the other “experts”
offered as witnesses by the state,
family studies Professor Loren Marks,
economist Joseph Price and economist
Douglas Allen. “The Court was unable
to accord the testimony of Marks, Price
and Allen any significant weight,”
he wrote, finding their criticisms of
the plaintiffs’ experts to be invalid.
“They, along with Regnerus, clearly
represent a fringe viewpoint that is
rejected by the vast majority of their
colleagues across a variety of social
science fields. The most that can be
said of these witness’s testimony is that
the ‘no differences’ consensus has not
been proven with scientific certainty,
not that there is any credible evidence
showing that children raised by samesex couples fare worse than those
raised by heterosexual couples.”
Turning to his legal analysis, the
judge found that the trial testimony
had disproved the “premise” that
“heterosexual married couples provide
the optimal environment for raising
children.” He pointed out that “the
optimal child-rearing justification
for the MMA is belied by the state’s
own marriage requirements” and that,
“contrary to the state defendants’
contentions, the MMA actually
fosters the potential for childhood
destabilization” by placing parent-child
relationships at risk if one parent in a
couple dies or becomes incapacitated
and the child is not legally related to the
other parent. He pointed out, in a bit of
amusing hyperbole, that were the state
really interested in allowing marriages
only for couples who would provide the
“optimal” environment as measured
by such outcomes as academic and
social achievements of children, “the
empirical evidence at hand should
require that only rich, educated,
suburban-dwelling, married Asians
may marry, to the exclusion of all other
heterosexual couples,” and found “the
absurdity of such a requirement” to
be “self-evident.” “Optimal academic
outcomes for children cannot logically
dictate which groups may marry.”
Finally, on this point, he noted the
basic irrelevance of this justification
because the “optimal environment”
for raising children “is simply not
advanced by prohibiting same-sex
couples from marrying.” In light of
the demographic evidence, it was clear
that “prohibiting gays and lesbians
from marrying does not stop them
from forming families and raising
children. Nor does prohibiting samesex marriage increase the number of
heterosexual marriages or the number
of children raised by heterosexual
parents. There is, in short,” he
concluded on this point, “no logical
connection between banning same-sex
marriage and providing children with
an ‘optimal environment’ or ‘achieving
‘optimal outcomes.’”
Friedman quickly disposed of
the other purported justifications
for the ban, noting that “proceeding
with caution” must give way when
constitutional rights are at stake,
that “tradition and morality” have
been repeatedly rejected by federal
courts as justifications for restricting
constitutional rights, and that the
state’s “federalism” argument had been
effectively rejected by the Supreme
Court in Loving v. Virginia (the opinion
striking down Virginia’s criminal ban
on interracial marriages) and U.S. v.
Windsor. “Taken together,” he wrote,
“both the Windsor and Loving decisions
stand for the proposition that, without
some overriding legislative interest, the
state cannot use its domestic relations
authority to legislate families out of
existence. Having failed to establish
such an interest in the context of
same-sex marriage, the MMA must
not stand.” He also rejected the state’s
argument that the MMA had some
kind of special legal status because it
was enacted by the voters. “The Court
is not aware of any legal authority that
entitles a ballot-approved measure to
special deference in the event it raises a
constitutional question.”
Federal judges have over the past
few months proved to be unusually
eloquent as they conclude their
same-sex marriage opinions, and
Judge Friedman is no exception. “In
attempting to define this case as a
challenge to ‘the will of the people,’
state defendants lost sight of what this
case is truly about: people. No court
record of this proceeding could ever
fully convey the personal sacrifice of
these two plaintiffs who seek to ensure
that the state may no longer impair
the rights of their children and the
thousands of others now being raised
by same-sex couples. It is the Court’s
fervent hope that these children will
grow up ‘to understand the integrity
and closeness of their own family
and its concord with other families
in their community and in their daily
lives,’” he continued, quoting from the
Supreme Court’s opinion in U.S. v.
Windsor. “Today’s decision is a step in
that direction, and affirms the enduring
principle that regardless of whoever
finds favor in the eyes of the most
recent majority, the guarantee of equal
protection must prevail.”
The 6th Circuit has set a May 7
deadline for the state to file its principal
brief on the appeal, and a June 9
deadline for plaintiffs to file their
response, with the state’s reply brief
due June 26, which means the court
is expecting to schedule arguments
sometime in the summer, but counsel
for the plaintiffs expressed hope
that they could persuade the court
to expedite the schedule in light of
what is happening in other circuits.
(Arguments are scheduled in the
10th Circuit during April and the
4th Circuit in May, with the 9th soon
to announce its rescheduled date.)
There was also some hope that the
court would consolidate this case
with the other cases coming up from
states in the 6th Circuit (Kentucky
and Tennessee and Ohio), but those
are just recognition cases, so perhaps
the court will see them as distinctly
different.
Judge Friedman was appointed to
the court by President Ronald Reagan
in 1988, during an administration that
reportedly had a strict conservative
litmus test for judicial appointees. He
is a veteran of more than a quarter
century on the court, and served as its
chief judge for several years, having
taken senior status a few years ago.
Although judges who have ruled in
favor of marriage equality claims have
been criticized as “judicial activists,”
and some of the judges have been
recent appointees of President Obama,
Judge Friedman is an appointee of a
Republican president and has a record
of lengthy, uncontroversial judicial
experience. The view that samesex couples are entitled to marry has
become mainstream among federal
judges since last June, as it has gained
comfortable majority support in major
national opinion polls.
Counsel for the plaintiffs include
Dana M. Nesse of Nessel Kessel,
Detroit, MI; Joshua A. Block,
American Civil Liberties Union
Foundation, New York, NY; Kenneth
M. Mogill, of Mogill, Posner, Lake
Orion, MI; Leslie Cooper, ACLU
Foundation, New York, NY; Mary L.
Bonauto and Vickie L. Henry, Gay
& Lesbian Advocates & Defenders
(GLAD), Boston, MA; Robert A.
Sedler, Wayne State University Law
School, Detroit, MI; and Carole M.
Stanyar, Ann Arbor, MI. ■
Civilly Committed Inmate Loses
Transgender Treatment Claims
A
n inmate under civil commitment
as a sexual predator failed to state
claims for relief against state
supervisory officials who did not have a
program for transsexuals in Hood v. Dep’t
of Children & Families, 2014 U.S. Dist.
LEXIS 24367 (M. D. Fla., February 26,
2014). Pro se plaintiff Ronald C. Hood,
Jr. (a/k/a Erika Denise Hood), sued:
the Florida Department of Children &
Families: its Secretary, David E. Wilkins;
and Daniel Montaldi, the Administrator
of the Sexual Violence Prevention
Program – to which Hood was civilly
committed following the expiration of
his criminal sentence. [Editor’s Note:
The Supreme Court has upheld the
constitutionality of such statutes. Kansas
v. Hendricks, 521 U.S. 346 (1997).] Hood
claimed violations of rights under the
First and Eighth Amendments, and he
he sought would be counterproductive.
They sought dismissal of the remaining
claims under the Eleventh Amendment.
Judge Steele dismissed all claims
against the State of Florida and its
agencies on Eleventh Amendment
grounds, relying on Pennhurst State
School & Hosp. v. Halderman, 465
U.S. 89, 100-03 (1984). He likewise
dismissed damages claims against state
officials in their official capacities. He
retained jurisdiction over declaratory
and injunctive claims against them -on the “significant exception” to the
Eleventh Amendment enunciated in Ex
Parte Young, 209 U.S. 123 (1908), under
which a plaintiff “may seek to enjoin
ongoing unconstitutional state action by
naming the responsible state officer in the
complaint and requesting that the officer
be enjoined from further unconstitutional
The court recognized that civil detainees are
“entitled to more considerate treatment.”
requested declaratory and injunctive
relief and damages.
The record is unclear as to Hood’s
diagnosis. Hood conceded that “he
sometimes feels like a woman and
sometimes like a man,” and the
defendants maintained he did not meet
the pre-DSM-V criteria for “Gender
Identity Disorder” [“GID”]. Hood said
that he was denied “any form of therapy”
at the Florida Civil Commitment Center
[“FCCC”], and he sought: “appropriate
transgender services” by a provider
familiar with transgender issues;
hormones; use of a female name, clothing,
and cosmetics; declarations that his rights
have been violated and that he would
have been eligible for release had he
received treatment for GID; and damages
for wages he would have received had he
been released from FCCC. Defendants
conceded that they “did not have a
specific policy for transgender treatment
and services.” They maintained that
Hood had never been diagnosed with
GID, and therefore the specific treatment
conduct” -- but he dismissed them as not
stating claims for relief under the Eighth
or First Amendments.
In analyzing Hood’s specific rights
to treatment, the court recognized that
civil detainees are “entitled to more
considerate treatment and conditions
of confinement than criminals whose
conditions of confinement are designed
to punish,” quoting Youngberg v.
Romero, 457 U.S. 307, 322 (1982). He
nevertheless proceeded to look to the
Eighth Amendment as setting “the
contours of the due process rights of the
civilly committed.”
The court found that FCCC’s
failure to have a “formal policy” for
transgender treatment “does not, alone,
pose a significant danger to a resident’s
health and safety, and does not amount
to a condition that causes unquestioned
and serious deprivation of basic human
needs,” citing Rhodes v. Chapman,
452 U.S. 337, 347-48 (1981). While
assuming that GID was a “serious”
medical issue, the court ruled that Hood
failed to show that FCCC had a policy
of refusing treatment for it or that he had
been diagnosed and refused treatment
by them: “[Hood] has not alleged facts
from which the defendants should have
inferred that their failure to formulate a
policy for the treatment of GID would
result in substantial risk of serious harm.”
Moreover, mental health practitioners
at the FCCC “disagreed” with Hood’s
GID diagnosis. Finally, even if they
should have inferred harm, Hood failed
to establish that their actions were “more
blameworthy than mere negligence.”
On the First Amendment claim
that Hood’s freedom of expression
was violated by the restrictions on his
presentation, limiting him to use of his
legal name and denying him female
clothes or cosmetics were upheld as
“reasonably related” to legitimate
penological interests, citing Turner v.
Safley, 482 U.S. 78, 89 (1987). “Plaintiff
was informed that it was clinically
unwise for him to be addressed by a
female name and that, because all the
residents at the FCCC were male, female
clothing was prohibited…. Plaintiff was
provided a rational, non-arbitrary basis
for regulating resident attire…. Moreover,
accommodation of Plaintiff’s right to
wear female clothing and cosmetics
would be unduly burdensome for FCCC
officials.” Even assuming that Hood had
GID, the court cited Murray v. United
States Bureau of Prisons, 106 F.3d
401 (6th Cir. 1997), with the following
parenthetical: “(transsexual prisoner not
entitled to wear clothing of his choice
and prison officials do not violate the
Constitution simply because the clothing
is not aesthetically pleasing).”
Hood thus stated no claims for
injunctive relief. His damages claims
likewise failed and were “wholly
speculative” in any event. See discussion
of the Eleventh Circuit’s far more
thoughtful decision in Kothmann v.
Rosario, 2014 U.S. App. LEXIS 4263
(11th Cir., March 7, 2014), also in this
issue of Law Notes, on appeal of another
transsexual case from a district judge in
Florida. – William J. Rold
William J. Rold is a civil rights
attorney in New York City and a former
judge. He previously represented the
American Bar Association on the
National Commission for Correctional
Health Care.
Transgender Inmate’s Medical Case
Survives Qualified Immunity Defense
A
female-to-male
transgender
inmate’s right to sue for medical
treatment survived a qualified
immunity defense in Kothmann v.
Rosario, 2014 U.S. App. LEXIS 4263,
2014 WL 889638 (11th Cir., March 7,
2014). Plaintiff Sebastian Kothmann
sued Luz Rosario, the Chief Health
Officer of a female prison in Florida,
for violation of his civil rights under
42 U.S.C. § 1983; and a per curiam
court affirmed the denial of qualified
immunity in an interlocutory appeal.
Kothmann, 38 years old, was
born female, but he has lived as male
throughout his adult life, undergoing
a number of pre-incarceration
surgical procedures, including a
hysterectomy, an oophorectomy, and
a double mastectomy as part of his
medical treatment for Gender Identity
Disorder [“GID”.] The court noted
the evolution of diagnostic criteria in
the American Psychiatric Association’s
DSM and the more descriptive “gender
dysphoria” described in the DSM-V,
but it nevertheless used the term GID
throughout the opinion.
Upon arrival in prison, Kothmann
informed Rosario of his diagnosis,
history, and prior sex reassignment
therapy and of his ongoing need for
hormone treatment to prevent medical
complications. He alleges that Rosario
repeatedly denied his requests for
hormone treatment and that his GID
ultimately went completely untreated.
He claims that Rosario “vetoed”
another prison doctor’s referral of
Kothmann to the endocrinology
staff, who could prescribe hormone
treatment, because “endocrinology is
not for cosmetic issues.”
In defense, Rosario claimed that
Kothmann was never diagnosed with
GID at the prison, that he had no
prescription for hormones from the
county jail; that the medication sought
was not in the state formulary (standard
pharmacy inventory); and that the law
was unsettled in any event as to whether
inmates could receive treatment for
GID, so qualified immunity should
apply.
Kothmann responded that it was
clearly established that intentional
refusal to provide recognized, accepted,
and necessary medical treatment for
GID constituted deliberate indifference
to his serious needs. He submitted a
declaration of an expert, Dr. Randi
Ettner, a clinical psychologist who
specializes in the treatment of
people with GID. Dr. Ettner said
that testosterone was necessary for a
hormonally reassigned patient in order
to “maintain emotional well-being and
physiological homeostasis”; that it was
the “only effective treatment”; and that
Rosario’s denial was “a gross departure
from accepted medical standards.”
In addition to presenting his other
history, Kothmann averred that he was
diagnosed with GID in 2005, that he
regularly took testosterone, and that he
was only in the county jail for less than
three weeks and had a referral pending
when he was transferred to state prison.
The court of appeals reviewed the
standards for qualified immunity from
Pearson v. Callahan, 555 U.S. 223,
231 (2009), which protects government
officials from liability where their
conduct “does not violate clearly
established statutory or constitutional
rights of which a reasonable person
would have known”; and the standards
for deliberate indifference to prisoners’
right to medical care for serious
needs under the Eighth Amendment
enunciated in Estelle v. Gamble, 429
U.S. 97, 103-06 (1976), and its progeny.
These Eighth Amendment rights assure
“diagnostic care and medical treatment
known to be necessary” and prohibit
“failing or refusing to obtain needed
medical treatment.” They include
“psychiatric or mental health needs,”
for which the court somewhat ironically
cites Harris v. Thigpen, 941 F.2d 1495,
1504-05 (11th Cir. 1991), where, in a
decision finally over-ruled last year, the
court refused to enjoin the segregation
of HIV+ inmates in Alabama, replying
in part on their right to treatment. See
Lesbian/Gay Law Notes (November
2013) at 355.
Rosario replied that Kothmann
received “some treatment” in the form
of counseling and that the law was
not clear that prisons specifically had
to provide transgender inmates with
hormones. The court ruled that the
issue was not “some” treatment, but
rather whether Kothmann’s counseling
was “adequate mental health treatment
for his GID” [emphasis by the court].
As to specific precedent, the court said
that “there is no requirement that the act
have been previously held unlawful,”
so long as its unlawfulness is “apparent
in light of pre-existing law,” which can
be drawn from “broad statement of
principle… applicable in the future to
different sets of detailed facts.”
Relying on the parties’ agreement
that GID is a “serious need” and taking
the complaint’s allegations as true (that
“hormone therapy is the medically
recognized, accepted and appropriate
treatment for GID and that Rosario
knew of Kothmann’s need for it and
knowingly refused it”), the court found
qualified immunity unavailable on these
facts as a matter of law. At the time of
Kothmann’s incarceration in 2010, the
state of the law “was sufficiently clear
to put Rosario on notice that refusing to
provide Kothmann with what she knew
to be medically necessary hormone
treatments was a violation of the Eighth
Amendment,” citing Hope v. Pelzer,
536 U.S. 730, 741 (2002).
Whether Kothmann’s claims can
survive summary judgment is left for
another day. The court notes that it
is not resolving whether the treatment
sought was in fact medically necessary
for Kothmann, what alternatives may
exist for him, or what Rosario in fact
knew. Rather, the court held: “Because
Kothmann has alleged facts sufficient
to show that Rosario violated clearly
established constitutional rights, we
hold that the district court did not err in
denying Rosario’s motion to dismiss.”
Kothmann was represented by
Cassandra Jae Capobianco and
Peter Prescott Sleasman of Florida
Institutional Legal Services, Inc.,
Newberry, FL. –William J. Rold
Massachusetts Appeals Court Affirms
Jury’s Rejection of Gay Man’s Tort Claims
against Former Partner
T
he Appeals Court of Massachusetts
upheld a jury verdict against a
gay man who sought to hold his
ex-partner liable in tort for intentional
infliction of emotional distress and battery
based on various sexually incidents that
occurred during their relationship. M.L. v.
S.N., 2014 Mass. App. Unpub. LEXIS 354
(Mar. 19, 2014).
M.L. and S.N. were engaged in a
“serious romantic relationship” from 1998
until 2008. Evidently, M.L. was a really hot
looking man, since he had once appeared
in a nude photo spread in Advocate Men
magazine. (Those curious to discover the
identity of M.L. who have access to backissues of Advocate Men (now defunct)
should note the court’s description of his
photographs, as described in an amicus
brief submitted in the case: “a number of
the photographs depict the plaintiff naked
with an erection or in a position signaling
his receptivity to being penetrated
through anal sex” and in one photograph,
he is shown wearing black leather chaps
with a yellow stripe down the side, which
evidence at trial indicated was a signal
of the wearer’s interest in sexual conduct
“involving urination.”)
M.L. claimed that his ex-partner
sought to exploit M.L.’s attractiveness by
using M.L. as “bait” to lure other men
into “threesomes.” M.L. claimed that S.N.
would pull down M.L.’s pants or shorts,
exposing him in public, for such purposes,
and in the course of one three some that
S.N. had facilitated, a third party forced
M.L. to perform fellatio to the point of
choking by holding M.L.’s head down.
M.L. also claimed that S.N. anally raped
him while he was unconscious due to drug
ingestion, the basis for a battery claim. He
also claimed that S.N. had urinated inside
M.L. during anal sex without M.L.’s
consent.
The trial court overruled M.L.’s
motion in limine to have the nude photospread kept out of evidence, and barred
the battery claim arising from the rape
incident on statute of limitations grounds.
The Appeals Court, in a per curiam
opinion, said that M.L.’s attorney had
failed to preserve his objection to
admission of the photos by renewing his
objection at the time of their admission,
although the court found that it was
error for the trial judge to admit them,
since they were prejudicial. “We think
all would agree that evidence of a nude
or partially nude photographic spread
showing a young woman, for example
in Playboy magazine, would not be
admissible as evidence in a trial in which
she alleged that her boyfriend years later
degraded her and intentionally inflicted
emotional distress by forcibly removing
her clothing in public and exposing her
breasts or genitals,” wrote the court. “A
failure to recognize that the photographs
at issue here are the same as those in the
hypothetical case may be attributable
to prejudice concerning the difference
between same-sex and opposite sex
couples that has no place in the law of
our Commonwealth. Likewise, the fact
that an individual may have engaged in
a sexual act in the past is not license to
force him or her to engage in such conduct
unknowingly or involuntarily. The rule
that is now well entrenched in our law,
and codified for certain cases in our rape
shield statute, is that an individual’s past
sexual conduct cannot and does not mean
that he or she is ‘asking for’ rape, sexual
assault, or other forms of abuse. The
photographs, therefore, should not have
been admitted.”
The court also rejected M.L.’s
argument that the forced sex with the
third party should not be time barred as
part of a “continuing tort” theory, finding
that this single incident from lon g ago
was “sufficiently discrete” that it should
be considered an “individual allegedly
tortious act” occurring too long ago to be
actionable.
Perhaps now M.L. will have a claim
against his trial attorney for professional
negligence in failing to object to
introduction of the photographs, since
it is possible that the Court of Appeal
would have upset the jury verdict had that
objection been preserved.
The Appeals Court acknowledged
having received an “amicus letter” from
Gay & Lesbian Advocates & Defenders. ■
Federal Court Requires Tennessee to Recognize Same-Sex
Marriages of Three Couples
J
udge Aleta A. Trauger of the U.S.
District Court for the Middle
District of Tennessee, Nashville
Division, has granted a preliminary
injunction to three plaintiff couples
presently challenging Tennessee’s ban
on recognizing same-sex marriages,
finding that pending a final decision
on the merits of the case, Tennessee
must recognize the three couples as
married, in Tanco v. Haslam, 2014
U.S. Dist. LEXIS 33463 (March 14,
2014). Judge Trauger subsequently
denied the defendants’ motion for a
stay of the preliminary injunction
pending appeal to the 6th Circuit,
2014 U.S. Dist. LEXIS 36823 (March
20, 2014).
The three same-sex couples were
each legally married in other states
and subsequently moved to Tennessee:
Drs. Valeria Tanco and Sophia Jesty in
New York; Sergeant Ijpe DeKoe and
Thomas Kostura in New York; and
John Espejo and Matthew Mansell
in California. The plaintiffs sued
the Governor of Tennessee, the
Commissioner of the Department of
Finance and Administration, and the
state Attorney General, arguing that
Tennessee’s laws mandating that the
state refuse to recognize their samesex marriages violated their rights
under the Equal Protection Clause of
the U.S. Constitution.
In support of their suit, plaintiffs
provided
statements
describing
the rights not afforded to them by
Tennessee in its failure to recognize
them as married. Drs. Tanco and
Jesty in particular were concerned
because Dr. Tanco was expecting a
child and worried about Dr. Jesty’s
legal relationship to the child after
birth and her ability to make medical
decisions about the child should Dr.
Tanco become incapacitated.
After reviewing the legal briefs
submitted by the parties as well as
an amicus brief by the Family Action
Council of Tennessee arguing against
the injunction, Judge Trauger issued a
ruling granting plaintiff’s motion for a
preliminary injunction. Judge Trauger
cited the Federal Rules of Civil
Procedure as to the legal standard
for when a preliminary injunction is
warranted: a plaintiff must show “he
is likely to succeed on the merits, that
he is likely to suffer irreparable harm
in the absence of preliminary relief,
that the balance of the equities tips in
his favor, and that an injunction is in
the public interest.”
Judge Trauger ruled that plaintiffs
were not barred by the statute
of limitations as the “continued
enforcement of an unconstitutional
statute cannot be insulated by the
which are pending on appeal in the 6th
Circuit.]
To further support her conclusion,
Judge Trauger cited to Bourke v.
Beshear, 2014 WL 556729 (W.D. Ky.
Feb. 12, 2014), which involved “an
analogous Kentucky anti-recognition
law,” which she found “to be
especially persuasive with respect to
the plaintiffs’ likelihood of success on
the merits.” That case held that the
analogous Kentucky anti-recognition
law was unconstitutional even when
subjected to merely a “rational basis”
test under the Equal Protection Clause.
Judge Trauger easily found
irreparable harm to plaintiffs,
stating that “the state’s refusal to
In balancing the equities, Judge Trauger
ruled that “no substantial harm can
be shown in the enjoinment of an
unconstitutional policy.”
statute of limitations.” Discussing
United States v. Windsor, 133 S. Ct.
2675 (2013), Judge Trauger stated that
“numerous federal courts, including
courts within the Sixth Circuit, have
addressed the impact of Windsor
on state laws relating to same-sex
couples and sexual orientation. These
courts have uniformly rejected a
narrow reading of Windsor [and]
have found that Windsor protects the
rights of same-sex couples in various
contexts… [and found] that similar
state anti-recognition laws are or likely
are unconstitutional.” She concluded
that “it is no leap to conclude that the
plaintiffs here are likely succeed in
their challenge.” [Editor’s Note: The
reference to other states in the 6th
Circuit was to prior rulings by district
courts in Ohio and Kentucky, both of
recognize the plaintiffs’ marriages
de-legitimizes their relationships,
degrades them in their interactions
with the state, causes them to suffer
public indignity, and invites public
and private discrimination and
stigmatization,” further stating that
“the court need not wait, for instance,
for Dr. Tanco to die in childbirth to
conclude that she and her spouse are
suffering or will suffer irreparable
injury from enforcement of the AntiRecognition Laws.”
In balancing the equities, Judge
Trauger ruled that “no substantial
harm can be shown in the enjoinment
of an unconstitutional policy,”
that “the administrative burden
on Tennessee from preliminarily
recognizing the marriages of the
three couples in this case would be
negligible,” and accordingly found
the balance of the equities “favors
issuance of a preliminary injunction.”
Finally, Judge Trauger concluded it
was in the public interest to grant the
injunction, stating “it is always in the
public interest to prevent the violation
of a party’s constitutional rights.”
In concluding that the preliminary
injunction should be granted, Judge
Trauger stated that “at some point
in the future, likely with the benefit
of additional precedent from circuit
courts and, perhaps, the Supreme
Court, the court will be asked to make
a final ruling on the plaintiff’s claims.
At this point, all signs indicate that,
in the eyes of the United States
Constitution, the plaintiffs’ marriages
will be placed on an equal footing
with those of heterosexual couples
and that proscriptions against samesex marriage will soon become a
footnote in the annals of American
history.”
A March 18 Associated Press
article noted that Governor Bill
Haslam and Attorney General Robert
Cooper had filed a motion arguing that
Judge Trauger’s ruling “frustrates the
will of the people of Tennessee” and
that leaving the status quo in place
pending appeal would not harm the
three couples, despite Judge Trauger’s
lengthy ruling explaining in detail the
irreparable injury the plaintiffs were
and potentially could suffer. [Editor’s
note: In her March 20 ruling denying
the defendants’ motion to stay the
preliminary injunction, Judge Trauger
distinguished this case from the
other marriage recognition rulings
that had been stayed, noting that the
injunction applied only to the three
plaintiffs and did not order state-wide
relief, thus rejecting the defendants’
absurd contention that denying the
stay would cause “chaos” in the
state or inflict “irreparable injury”
on the defendants. She also found
that plaintiffs had adequately shown
irreparable harm if the injunction
were not enforced, contrary to the
defendants’ conclusory assertions to
the contrary.] – Bryan C. Johnson
Federal Judge Grants Summary
Judgment against Gay Man Who Wore
Loincloth to Windy San Diego Pride
O
n March 11, 2014, Judge
Cathy Ann Bencivengo of the
United States District Court
for the Southern District of California
dismissed all claims made by a gay man
against the City of San Diego, San Diego
Lesbian Gay Bisexual Transgender
Pride, Inc., several San Diego police
officers, and the head of Pride security
over a public nudity arrest made at San
Diego Pride in 2011. Walters v. San
Diego, 2014 U.S. Dist. LEXIS 32176
(S.D. Cal. Mar. 11, 2014). All defendants
had moved for summary judgment. The
San Diego Union-Tribune reported on
March 28 that the plaintiff is planning
to appeal the court’s ruling to the 9th
Circuit.
The arrest in question sprung out of
San Diego’s public nudity ordinance. San
escorted out of the beer garden.
Walters believed that the entire
episode was not about enforcing a
public nudity ordinance, but rather a
conspiracy to discriminate against a gay
man based on his sexual orientation.
With that in mind, Walters filed a §1983
action with seven claims against the
City Defendants: (1) injunctive relief for
a discriminatory policy, (2) Fourteenth
Amendment equal protection violation,
(3) Fourth Amendment search and
seizure violation, (4) false arrest, (5)
battery, (6) negligence, and (7) California
Civil Code § 52.1 Civil Rights Violation.
As to the Pride Defendants, only the
second through the sixth causes of
action remained against them at the time
of decision. Both the City Defendants
and the Pride Defendants moved for
Walters came to San Diego Pride in 2011 wearing
a “gladiator-type black leather loincloth.”
Diego Municipal Code § 56.53 forbids
persons over the age of 10 from being
“nude and exposed to public view.” For
males, “nude” is defined as “devoid of
an opaque covering which covers the
genitals, pubic hair, buttocks, perineum,
anus or anal region of any person.”
On the day of his arrest, Will X.
Walters came to San Diego Pride in
2011 wearing a “gladiator-type black
leather loincloth” with a g-string
underneath. He entered the beer garden
where he had an initial confrontation
with a police lieutenant who told him
to cover up. After Walters told him
“I’m not interested in your opinion,” the
lieutenant met up with other officers and
told them about Walters’ outfit. One of
those officers then saw Walters when the
wind was blowing, lifting up the back of
his loincloth and exposing his buttocks.
Another officer directed Walters to talk
to him, but Walters refused to comply.
He was then arrested and physically
summary judgment on all claims.
Judge Bencivengo revealed her
dismal reaction to Walters’ whole theory
of the case in her analysis on the very
first cause of action, finding that “[t]here
is nothing in the record that reasonably
suggests sexual orientation had anything
to do with the decision to insist upon
compliance with the literal text of §
56.53 at the 2011 Pride Event.” She
further cited several precedents for the
proposition that “laxity of enforcement
or the nonarbitrary selective enforcement
of a statute has never been considered a
denial of equal protection.” Altogether,
there was no “competent evidence of
an unconstitutional policy or practice”
and “[w]ithout a predicate policy or
practice to enjoin, Walters does not have
a cognizable claim or relative hardship
demonstrating immediate threat of
harm as to warrant the requested
injunction.” Unsurprisingly, then, she
granted summary judgment to the City
Defendants.
Her analysis on the other fronts
continued in a similar vein. For equal
protection, she found “no evidence that
the San Diego Pride Defendants entered
into a conspiracy with the [police]
or willfully sought to implement an
unlawful policy of discriminatory and
selective enforcement of San Diego’s
public nudity laws.” (She does note,
however, that “there is evidence that
Walters may be the only person in the
history of the City of San Diego arrested
and booked on a stand-alone charge of
public nudity that was not completely
naked.”)
On the Fourth Amendment claim,
she concluded that “[t]he undisputed
evidence shows that the flaps of Walters’
loincloth moved freely as Walters moved
and as the wind blew that day, exposing
his buttocks.” This fact pattern provided
“probable cause for the arrest” and even
if it did not, the police officers were
entitled to qualified immunity because
“a reasonable officer with the same
facts as the defendant officers could
determine there was probable cause to
arrest Walters for failing to cover his
buttocks.” She also dismissed the false
arrest claim using the same reasoning.
As to battery, Judge Bencivengo saw
no evidence for such a claim against the
police officers, but did have disputed
facts concerning whether the head of
Pride security struck Walters’ arm. She
therefore denied summary judgment
to the Pride Defendants on that claim,
but still dismissed the claim without
prejudice for Walters to refile in state
court.
Lastly, summary judgment was
granted to the City and Pride Defendants
on the negligence and California Civil
Rights violation claims based on the same
reasoning with which she dismissed the
earlier claims. She did specifically add
in her negligence analysis that the Pride
defendants “owed no duty to Plaintiff to
warn that the police intended to enforce
the law.”
Judge Bencivengo also denied as
moot a motion by San Diego to exclude
certain expert testimony submitted by
Walters. –Matthew Skinner
Matthew Skinner is the Executive
Director of The LGBT Bar Association
of Greater New York.
NY Judge Orders City to Pay for
Transgender Youth’s Surgery
N
ew York State Supreme Court
Justice Peter H. Moulton ordered
New York City’s Administration
for Children’s Services (ACS) to pay
for gender reassignment procedures,
including surgery, for a 20-year-old
transgender girl who is still in the
foster care system. D.F. v. Carrion,
Index No. 400037/14 (N.Y. Sup. Ct.,
N.Y. Co., March 21, 2014). Moulton’s
March 21 order was reported in the
New York Law Journal on March 31.
A deputy commissioner had denied
the application for treatment for these
procedures, which are not covered
under New York State’s Medicaid
program and thus would have to come
out of the agency’s budget, despite a
recommendation to approve them
from the health care providers who
have dealt with D.F., as the child is
identified in court papers.
Justice Moulton’s opinion relates
that D.F., although identified as male
at birth, had identified as female for
many years, and was diagnosed with
gender dysphoria, a diagnosis that
ACS does not dispute. D.F. and her
sister entered foster care after ACS
filed a petition of neglect against her
parents in 2009. The petition specified
that D.F.’s parents had criticized
her over her sexual orientation and
gender expression, and that her father
abused alcohol and committed acts
of domestic violence against D.F. and
her mother. The Family Court placed
D.F. with Green Chimneys Gramercy
Residence, and when that facility
closed in July 2013, she was moved
to a residence for LGBTQ youth run
by SCO Family of Services. However,
as she grew older she absented herself
from these facilities and lived for
extended periods with various friends,
including in a house in Queens that
D.F. claims is being considered for
certification as a foster home.
While in the custody of ACS, D.F.
has “regularly availed herself of the
health services at Callen-Lorde,” an
LGBT community non-profit health
care agency, as well as services
provided through Green Chimneys.
The various doctors at these facilities
who have treated her agreed that she
needed gender transition treatments,
including hormones, which she began
taking a few years ago, and now surgery.
Based on their recommendations and
her strong desire for these treatments,
D.F. submitted an application.
ACS’s procedure with dealing for
requests for treatments not covered
under Medicaid requires the foster
agency to first determine whether there
are any other sources of funding, then
to submit various forms and statements
to ACS from the medical professionals
concerning the need for the treatment.
Applications are then submitted to
a Health Review Committee, which
makes a recommendation to the Deputy
Commissioner, who is delegated by the
Commissioner with the responsibility
for being the “final” decisionmaker.
The Review Committee has authority
to consult with “specialists from the
fields in which a particular type of
treatment of care is being requested.”
The agency’s policy on transgender
treatments specifies that decisions are
to be made in accord with the standards
of care that have been established by
the World Professional Association for
Transgender Health, usually referred
to as the Harry Benjamin standards.
D.F.’s doctors concluded that
she met the standards for surgery,
and supported her application, as
did the Health Review Committee
after Green Chimneys submitted the
formal application. However, Deputy
Commissioner Benita Miller rejected
the Committee’s recommendation
on July 11, 2013, basing this on
D.F.’s frequent absences from Green
Chimneys and having frequently
missed health appointments there.
When D.F. tried to appeal this ruling,
a City hearing officer held that under
the policies of ACS the Deputy
Commissioner’s decision was final.
Miller had also commented that
D.F. had requested other surgical
procedures since submitting her
application but failed to include them
in the formal application required by
the policy. D.F. then got together a
second, more inclusive application,
which she submitted on July 18,
2013. This application relied on the
earlier statements by her doctors,
supplemented with new statements
from two of them, specifically stating
that D.F.’s hormone treatment was
“insufficient to her ultimate goals” and
that the procedures she was requesting
“would serve a therapeutic purpose
and improve her well-being.” The
doctors found that D.F. understood
the risks of gender surgery and was
able to provide informed consent. The
estimated cost of the procedures was
about $46,000.
Departing from its own rules, ACS
did not submit this second application
Justice Moulton commented, “He does
not address how a transgender young
adult, aging out of foster care with
no family support and few apparent
prospects for employment, might pay
for these procedures.”
Although Justice Moulton returns
to this issue briefly at the end of his
opinion, and perhaps is too polite to
impute improper motives to public
officials, the tenor of his opinion
suggests a suspicion that ACS was
trying to get out of paying for D.F.’s
surgeries by delaying until D.F. aged
out of the program, which she will
shortly do when she turns 21. Certainly,
Justice Moulton found little reason to
credit Steever’s recommendation, and
concluded that Deputy Commissioner
Miller’s denial of D.F.’s second
application, on October 15, 2013,
which relied explicitly on Steever’s
recommendation, was “arbitrary and
The tenor of the opinion suggests a suspicion
that ACS was trying to get out of paying for
D.F.’s surgeries by delaying until D.F. aged out
of the program.
to the Review Commission. Instead,
ACS consulted an “independent
specialist,” Dr. John Steever, an
Assistant Professor of Pediatrics and
Adolescent Medicine at Mount Sinai
Medical Center, who has focused on
health issues facing LGBTQ youth.
Steever declined to meet with D.F. and
decided, based on the paper record,
that D.F.’s “poor adherence to AACS
recommendations
and
program”
suggested she would not be compliant
with post-operative procedures, which
could result in “infections, unnecessary
scarring, urinary problems, and
sexual sensation problems.” He did
not dispute the gender dysphoria
diagnosis, but stated that there was no
emergency that required immediate
surgery, and the procedures could be
deferred until D.F. was able to comply
with the necessary follow-up care.
capricious” and thus a violation of
D.F.’s rights.
While Moulton found that the need
for follow-up care after the surgical
procedures D.F. was requesting was
not disputed, he found the decision to
deny the application to be “arbitrary
and capricious for several reasons.”
First, he found no basis in the record
for the conclusion that D.F.’s absences
from her group homes and occasionally
missing medical appointments “are
indicators that she will not participate
in necessary post-operative care,” and
he pointed out that the doctors who
had treated her and supported her
application were certainly aware of
the need for such care but nonetheless
endorsed her application. The
record also showed that he had been
consistent in following her hormone
treatment protocols, had “repeatedly
and consistently tested negative for
STDs and HIV,” and had no record of
drug or alcohol abuse.
Additionally, Moulton criticized
the failure of the agency to follow
its own procedures. Instead of
referring the application to the
Review Committee, they referred
it to a pediatrician, not a mental
health professional, for comment,
even though the official standards
that ACS has adopted required that a
“qualified mental health professional”
be the one to assess a person’s request
for gender transition surgery. The
judge also pointed out that “it was
also a deviation from the WPATH
standards of care for ACS to follow
the recommendation of a physician
who had not met with petitioner, but
instead based his recommendations
entirely on reviewing a paper record.
“An agency’s failure to follow its own
procedures or rules in rendering a
decision is arbitrary and capricious,”
he wrote.
He further criticized the ACS
policy of giving complete discretion
to the Deputy Commissioner to deny
treatment even though the Review
Committee had recommended it,
subject to now sort of appeal. ACS
had adopted specific criteria for
determining whether a transgender
individual qualified for surgical gender
transition, all of which were met in this
case, yet ACS authorized the Deputy
Commissioner to deny treatment for
reasons not mentioned in those official
criteria. “The adoption of a procedure
allowing for unfettered discretion in
agency decision making is arbitrary
and capricious,” wrote Moulton.
But, perhaps most importantly,
Moulton came back to the point that
apparently caused most concern.
“ACS’ denial of the requested
surgeries and procedures ‘at this
time’ thus completely ignores another
factor: petition’s almost certain
inability to pay for these surgeries
and procedures. Once she ages out
of foster care, petitioner’s chances of
raising the money necessary to pay
for these procedures appear to be
nil.” New York’s Medicaid program
won’t pay for them. D.F. has not yet
completed the requirements for her
G.E.D. (general high school graduation
certificate), and her employment
prospects are uncertain. Until she can
afford to purchase health insurance
that would cover these procedures, her
ability to obtain them would be put
“on hold”. Getting the surgery while in
foster care is, in effect, her last chance
to get these treatments for some
indeterminate time to come. “The
inability to pay for gender affirming
surgeries and procedures after foster
care is not a factor that should trump
clinical factors,” he wrote, “but it
certainly should not be absent from
ACS’ decision making. Payment by
ACS for necessary medical procedures
may be a transgender youth’s only
chance to achieve congruence between
her gender identity and her physical
appearance.
Accordingly,
ACS’
omission of this factor from its NMR
Policy and Guidance is arbitrary and
capricious.”
So concluding, Justice Moulton
ordered that ACS “shall take all steps
necessary to pay for the procedures
specified in petitioner’s application
dated July 18, 2013.
D.F. was represented by Courtney
Camp and Judith Stern, attorneys
with the Legal Aid Society. Tamara
Steckler, the attorney in charge for
Legal Aid’s juvenile rights practice,
told the Law Journal that requests for
such surgery had occasionally been
granted by ACS in the past, but that
“this area is not well fleshed out”
and that the city should take this
opportunity to review its procedures
and “better support our clients aging
out of foster care.” In addition, the
state should reconsider its Medicaid
policies to recognize that gender
transition procedures can be medically
necessary treatments, as federal tax
authorities have recently recognized
pursuant to a U.S. Tax Court ruling
that related expenses incurred by a
transgender person for such procedures
are tax deductible medical expenses.
If Medicaid covered these procedures,
there would be no need for ACS to
have a convoluted defective internal
procedure for deciding whether to pay
for them. ■
State Court Affirms Model’s Right
to Sue for Unauthorized Use of Her
Photo in an AIDS Public Service
Advertisement
N
ew York Supreme Court Justice
Anil C. Singh rejected a motion
by an “image distributor” to
dismiss a model’s lawsuit seeking
compensatory and punitive damages
for the unauthorized publication
of her picture in a public service
advertisement placed in print media
by the New York State Division of
Human Rights to inform people living
with HIV about legal protection from
discrimination. The March 6 ruling
in Nolan v. Getty Images (US), Inc.,
NYLJ 1202648100346 (Sup.Ct., N.Y.
Co.), was published in The New York
this advertisement has caused her
emotional distress and actual harm, as
it has led people to think that she is
infected with HIV. Her lawsuit relies
on the New York Civil Rights Law,
Sections 50 and 51, which makes
it unlawful for anybody to use a
person’s image for trade or advertising
purposes without getting their written
permission, and authorizes individuals
to sue for damages.
Moving to dismiss the case, Getty
argued that “displaying and licensing a
photograph are, as a matter of law, not
advertising or trade uses” under the
Nolan is not HIV-positive, and alleges that the
appearance of this advertisement has caused
her emotional distress and actual harm.
Law Journal on March 24.
The defendant, Getty Images (US)
Inc., “is in the business of licensing
stock photographs on the Internet,”
according to Justice Singh’s opinion,
summarizing the allegations in Avril
Nolan’s complaint. Getty acquired
Nolan’s image from a photographer
named Jena Cumbo. Cumbo had
not obtained a written release from
Nolan authorizing the use or sale of
her picture, but nonetheless sold it to
Getty, which then licensed it to the
New York State Division of Human
Rights, which used it to illustrate an
advertisement placed in newspapers
with the caption: “I am positive (+)
and I have rights” and “People who are
HIV positive are protected by the New
York State Human Rights Law. Do you
know your rights? Contact the NYS
Division of Human Rights.”
Nolan is not HIV-positive, and
alleges that the appea rance of
civil rights law, and to impose liability
in this case would violate Getty’s First
Amendment rights. Getty argues that
it is merely licensing the photograph,
and that it is the “end-user” of the
photograph, if anybody, that would be
liable to Nolan for its public display
in this context. Getty argued that the
law did not require it to “investigate
the existence or validity of every
image release on its database because
such duty would be inconsistent with
the First Amendment.” Getty also
emphasized that Nolan is a model
and willingly posed for a commercial
photograph, so could hardly argue that
the subsequent use of the photograph
violated her right of privacy.
“Contrary to Getty’s argument, a
claim lies for placing Nolan’s image
in Getty’s catalogue, especially where
plaintiff’s photograph is ultimately
used in an advertisement, and the use
of plaintiff’s likeness created a false
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impression about plaintiff,” wrote
Justice Singh. Furthermore, he rejected
Getty’s argument that the New York
State Constitution affords “heightened
free speech protections to commercial
speech.” Actually, quite to the contrary,
commercial speech generally enjoys
less protection than political or artistic
speech, and the New York courts have
repeatedly rejected constitutional
challenges to the Civil Rights Law,
which authorizes individuals to pursue
damages for unauthorized use of their
photographs.
“Written consent is explicitly
required by the statute,” Singh pointed
out. Furthermore, as long as Nolan’s
photograph was available for viewing
as part of Getty’s on-line catalogue,
“the plaintiff’s assertion of a website’s
accessibility sufficiently meets the
required statutory element of use
within New York State.”
Singh also noted that in deciding a
motion to dismiss, he was assuming
the truth of Nolan’s factual assertions.
In order to win the damages she is
claiming, Nolan would have to prove
at trial all the requisite elements of the
claim.
The Law Jour nal inter viewed
Nolan’s attorney, Erin Lloyd of Lloyd
Patel in Manhattan, who said she
first learned about the ad through
a message posted on her Facebook
page and “became instantly upset
and apprehensive that her relatives,
potential romantic partners, clients,
as well as bosses and supervisors
might have seen the advertisement.”
According to Lloyd, Nolan was
“humiliated and embarrassed” when
forced to “confess to her bosses
that her image had been used in an
advertisement for HIV services,
implying that she was infected with
HIV.” The lawsuit seeks $450,000 in
damages, and claims that Getty has a
legal responsibility to get permission
from models before exhibiting or
licensing their photos.
For its part, Getty says that Nolan’s
picture is one of millions of images
collected from photographers and
generally available on its website. If
it were to be held liable in any case
where a photographer did not obtain a
written model release, its business plan
would effectively fall apart. Getty’s
law firm, Wolff and Sholder, argued in
the motion to dismiss that “displaying
and licensing a photograph is not the
same as ‘advertising’ as contemplated
in the Civil Rights Law,” according to
the Law Journal’s report.
New York courts have held that
the Civil Rights Law provisions do
not apply to unauthorized use of a
photograph to illustrate a news story,
and have interpreted this judge-made
exception to the statute rather broadly.
As long as a photograph has some sort of
thematic relationship to a newsworthy
story, the person depicted in the
photograph has no claim to damages.
Thus, if Ms. Nolan’s photograph had
been used in a news story about HIVrelated discrimination, she would
have no claim under this statute, even
if the placement or caption might lead
readers to conclude that she was HIVpositive. But an advertisement — even
a public service advertisement — is
different.
In this case, Nolan is seeking to
hold Getty, the distributor of the image,
responsible for its eventual use in a
commercial context, even if, as Getty
argued, it may have been unaware of
that potential use when it licensed the
photograph. Indeed, it seems possible,
even likely, that an advertising agency
retained by the Division of Human
Rights to devise this advertisement
licensed the photo from Getty’s online catalogue through an automated
process in which no human being at
Getty participated. The court may
ultimately confront the question
whether it is appropriate to apply the
Civil Rights Law to anybody and
everybody in a chain of transactions
if a photograph ends up being used
in an actionable commercial context
when the original creator of the image
– the photographer – failed to get a
broadly-worded written release from
the model. Requiring photographers
to submit such releases with every
photograph they submit to Getty may
become a requirement of the business
to avoid liability if a photograph is
used commercially within New York
State. ■
N.Y. Appellate Panel Finds Discharge is Disproportionate
Penalty for Teachers Accused of Having Lesbian Sex in a
Classroom
I
n a pair of decisions decided on March
20, the New York Appellate Division,
First Department, found that the
New York City Education Department
should not have discharged two female
teachers who were alleged to have
been engaging in sexual activity in a
darkened otherwise-empty classroom
one evening while a musical program
was taking place elsewhere in the
building. However, the court found that
the teachers had engaged in conduct
that merited punishment, and sent the
case back to the Education Department
for imposition of “a lesser penalty.”
The court’s opinion made nothing
of the gender of the teachers. Brito v.
Walcott, 2014 N.Y. Slip Op 01813, 2014
N.Y. App. Div. LEXIS 1758; Mauro v.
Walcott, 2014 N.Y. Slip Op 01814, 2014
N.Y. App. Div. LEXIS 1763.
A spokesperson for the Education
Department expressed disappointment
with the decision, and one blog
reported that the Department’s new
head, Carmen Fariña, might seek
review from the state’s highest bench,
the Court of Appeals.
Alini Brito was a Spanish teacher
and Cindy Mauro was a French teacher,
both assigned to James Madison High
School in Brooklyn. On November 20,
2009, they joined with other colleagues
to have dinner and then return to the
school to watch a music competition
in the auditorium. Brito and Mauro
slipped out during the performance
and were later allegedly observed
by a school employee in an upstairs
classroom “partially undressed and
engaging in what appeared to be
sexually inappropriate behavior” with
each other. The women contended that
they were not engaged in sex and that
the observer misconstrued what he saw.
However, the Education Department
claimed that their conduct “caused
widespread negative publicity, ridicule
and notoriety” to the school and the
Department when somebody, who
knew they had a juice story, talked to
the newspapers, leading to widespread
print and electronic media reporting
about the incident.
The Education Department sought to
discharge both teachers, and the union
pursued grievances on their behalf to
arbitration. The discharges were upheld
in arbitration by the hearing officers,
and the teachers appealed to New York
Supreme Court, the trial court with
jurisdiction over the case. The two trial
court judges who heard the appeals
came to differing conclusions. In
Brito’s case, Justice Alice Schlesinger
vacated the termination and the finding
of misconduct and sent the case back
classroom on November 20, 2009,
at about 9:00 p.m., while a student
musical performance was under way in
an auditorium on the first floor. There
is no basis for disturbing the hearing
officer’s credibility determinations.”
This finding also confirmed Justice
Torres’s conclusion in Mauro’s case that
the teacher had engaged in misconduct.
But, said the court, “the penalty
of termination of employment is
shockingly disproportionate to
petitioner’s misconduct.” The court
observed that the teachers were present
at the school as audience members, not
in their official capacity as teachers,
and that the incident “involved a
“While petitioner’s behavior demonstrated a
lapse in judgment, there is no evidence that
the incident was anything but a onetime
mistake.”
to arbitration for a new hearing.
However, in Mauro’s case, Justice
Robert Torres enforced the arbitrator’s
award, upholding the discharge. Both
decisions were appealed, and an
Appellate Division panel considered
both cases together.
The panel found that Justice
Schlesinger should not have substituted
her judgment for the hearing officer
about what the evidence showed. “Here,
Supreme Court erred in substituting
its judgment for that of the hearing
officer. The hearing officer’s findings
of misconduct . . . are supported by
adequate evidence,” wrote the court.
“Multiple witnesses gave interlocking
and closely corroborating testimony
indicating that petitioner engaged in
sexual conduct with an adult colleague
in a darkened and empty third-floor
consenting adult colleague and was
not observed by any student.” Both
teachers enjoyed academic tenure and
had unblemished disciplinary records.
Brito’s supervisor described her as
“one of the best teachers she had ever
worked with,” and the court noted that
Mauro had “consistently satisfactory
teaching ratings.”
In identical paragraphs in the two
opinions, the court explained, “While
petitioner’s behavior demonstrated a
lapse in judgment, there is no evidence
that the incident was anything but a onetime mistake. Of critical significance
is that, unlike matters involving some
sort of romantic involvement or other
inappropriate conduct with a student,
petitioner’s engaging in consensual
sexual conduct with an adult colleague
is not in and of itself either criminal
or otherwise improper. Indeed, lesser
penalties have been imposed where
a teacher had an ongoing relationship
with or engaged in inappropriate
behavior with a student. Nor is there
any indication in the record that
petitioner’s conduct will affect her
ability to teach or that she intended
to inflict any damage on any student.
While it is unfortunate that the incident
garnered so much attention and was
exploited in the media, that in and of
itself does not warrant the penalty of
termination.”
This opinion is an extraordinary
example of how drastically things have
changed over the last several decades.
There was a time when the mere hint
that a teacher was lesbian or gay would
result in a discharge, back when all gay
sex was condemned as criminal. New
York’s highest court voided the state
“sodomy” law’s application to private,
consensual adult conduct in 1980,
however, and in 1986 the City Council
passed an ordinance forbidding sexual
orientation discrimination. These
actions were amplified when the state
legislature repealed the sodomy law
and passed the Sexual Orientation
Non-Discrimination Act early in this
century, and of course in 2003 the
U.S. Supreme Court ruled that private
adult consensual homosexual sex came
within the sphere of liberty protected
under the 14th Amendment. What
could have been seen as criminal and
scandalous decades ago became the
object of ridicule by some elements
of the media in 2009, and now a state
appellate court says that the teachers
deserve some punishment for this
lapse in judgment for engaging in this
conduct in an unlocked classroom
while an evening event was happening
at their school auditorium, but not
discharge.
The teachers were both represented
by Michael Valentine and Aaron
Altman of the firm Altman Schochet.
The judges on the unanimous appellate
panel were Angela Mazzarelli, Richard
Andrias, Leland DeGrasse, Helen
Freedman and Judith Gische. The
unsigned opinions were the collective
work of the panel, not attributed to any
individual justice. ■
Federal Judge Rejects Delay in
Wisconsin Marriage Equality Case
U
.S. District Judge Barbara B.
Crabb has rejected an attempt
by Wisconsin officials to
delay the marriage equality case
pending before her. Ruling on
March 24, Judge Crabb confirmed a
schedule established by Magistrate
Judge Stephen Crocker to complete
briefing in the case by the end of May
2014, with arguments on a motion for
summary judgment expected soon
after. “Abstaining or staying the
case would serve no purpose but to
delay the case,” wrote Crabb in Wolf
v. Walker, 2014 U.S. Dist. LEXIS
38554 (W.D. Wis., March 24, 2014).
Eight same-sex couples filed suit
that Crabb should put the case “on
hold” until a case now pending
before the Wisconsin Supreme
Court concerning interpretation
of the state’s marriage amendment
is decided, and to “abstain” from
ruling in this case because the
relief requested by the plaintiffs
— injunctions against three county
clerks – “would disrupt the state’s
important interest in the uniform
and coherent administration of state
marriage laws.” The three county
clerks are also defendants in the
case, but they actually side with the
plaintiffs on the merits.
After reviewing the grounds
The state defendants argued that Judge Crabb
should hold off until the Wisconsin Supreme
Court decides another case concerning
interpretation of the state’s marriage
amendment.
in the Western District of Wisconsin
challenging the state’s ban on same
sex marriage, which is contained
in a constitutional amendment and
statutes. They had filed a motion for
a preliminary injunction, but Judge
Crabb suggested that if they would
withdraw the motion, she would set
an expedited scheduled to get the
case through discovery to a summary
judgment hearing quickly. They
withdrew their motion, the magistrate
set a short briefing schedule,
and then the state defendants —
Governor Scott Walker, Attorney
General J.B. Van Hollen, Secretary
of Revenue Richard G. Chandler,
State Registrar Oskar Anderson and
two district attorneys — filed a new
“motion to abstain and stay,” arguing
upon which a federal court might
hesitate to decide a case concerning
the validity of state laws, Judge
Crabb concluded that this is not
such a case. Sometimes it is prudent
for a federal court to hold its fire
because the meaning of a state law is
ambiguous and litigation pending in
the state court system might clarify
the meaning in a way that would
resolve any federal constitutional
review. The defendants argued that
Appling v. Walker, the pending state
supreme court case concerning
whether the marriage amendment
prevents the state from providing
domestic partner benefits to state
employees, might “materially alter”
the federal constitutional analysis,
but Judge Crabb rejected that
argument. “The state defendants
do not suggest that there is any
uncertainty regarding whether the
Wisconsin Constitution prohibits
same-sex couples such as plaintiffs
from marrying in Wisconsin,” she
wrote. “That is obvious from the
language of the amendment. Further,
defendants
acknowledge
that
Appling v. Walker will not ‘obviate
the need for a federal constitutional
ruling’ in this case. As made clear
by the Wisconsin Court of Appeals,
Appling ‘is not about whether
the Wisconsin or United States
Constitutions require, on equal
protection or other grounds, that
same-sex couples have the right to a
legally recognized relationship that
is identical or substantially similar
to marriage.’” Rather, Appling is
concerned with whether the simple
extension of partner benefits to state
employees creates such a “legally
recognized relationship” and thus is
barred by the Wisconsin Marriage
Amendment. The answer to that
question is basically irrelevant to
the question pending before Judge
Crabb.
“As plaintiffs point out,” she wrote,
“if the Wisconsin Supreme Court
upholds the domestic partnership
law, nothing changes. If the court
invalidates the law, the only effect
is to make the deprivation imposed
on plaintiffs [by the Marriage
Amendment] more severe. Thus, it
is difficult to envision any scenario
in which the state defendants could
rely on the supreme court’s decision
to strengthen their position.” Thus
they failed to show that “exceptional
circumstances”
would
justify
delaying the case in order to wait
for the Wisconsin Supreme Court’s
decision.
On the abstention point, the
defendants argued that because
the plaintiffs had not certified a
class action, the court’s ruling in
their favor would be binding only
on the three clerks named in the
complaint. As none of the other
named defendants are responsible
for issuing marriage licenses, say
the defendants, the result would be
a lapse in the “uniform and coherent
administration”
of
Wisconsin’s
marriage laws because same-sex
couples would be able to marry in
some counties but not others, since
none of the other state defendants
had any authority under state law to
“direct the actions of Wisconsin’s
county clerks with regard to the
issuance of marriage licenses.” They
urged the court to “take steps to
address the uniformity concern they
have raised.”
The three county clerks who are
defendants in the case apparently
sympathize with the plaintiffs on
this point, as they submitted to
the court that it was likely that
if the court ruled in favor the
would subject any existing party to
inconsistent obligations.”
She criticized the defendants for
“seeking to place an extraordinary
burden on plaintiffs without any
authority for doing so,” essentially
asking the court to require them
to “forfeit their case” unless they
can round up same-sex couples
from every county in the state to
join as plaintiffs or “replead their
case as a class action.” But, she
concluded, plaintiffs have a right
to bring a lawsuit to vindicate their
own constitutional rights, suing the
officials who have refused to issue
them marriage licenses. “Thus, even
if I assume that state defendants
are correct that the judgment in
this case would not bind nonparty
county clerks,” she wrote, “I see no
legal grounds for granting the state
The answer to the question in Appling is
basically irrelevant to the question pending
before Judge Crabb.
plaintiffs, county clerks around
the state would comply with any
orders that were issued in the case,
since the state registrar, who is a
defendant, “establishes the form for
marriage licenses that clerks must
use.” Indeed, Crabb found that the
defendants had, in effect, conceded
that abstention was not appropriate
on this constitutional question, and
she rejected the idea that it was
necessary to join all the county
clerks in Wisconsin as defendants to
resolve this “problem.” She pointed
out that since the plaintiff couples in
the case were not seeking marriage
licenses from any of the other
clerks, they would lack standing
to sue the other clerks in federal
court. “In any event,” Crabb wrote,
“the state defendants do not suggest
that a judgment in plaintiffs’ favor
defendants’ request.”
The plaintiffs are represented by
lawyers from the ACLU’s LGBT
Rights Project and the ACLU
of Wisconsin, with cooperating
attorneys from Mayer Brown LLP’s
Chicago office. Judge Crabb is
a Senior District Judge who was
appointed by President Jimmy
Carter in 1979 and served as Chief
Judge of the district from 1980
to 1996. She took senior status
in 2010. From her rulings in the
case so far, it sounds like she is
thoroughly enjoying presiding over
this litigation, and there seems little
doubt how she is likely to rule on the
summary judgment motion, which is
why the state defendants are doing
everything they can to try to delay
things as long as possible. But Judge
Crabb is having none of that! ■
Must Employee Disclose HIV-Positive Status on Employer
Medical Questionnaire?
U
.S. District Judge Timothy M.
Cain (D.S.C.) has denied a
motion for summary judgment
in an Americans with Disabilities Act
discrimination case brought by an
HIV-positive man who was discharged
after the employer learned that he was
HIV-positive. The employer claimed
that the reason for the discharge was
that the man had failed to disclose his
HIV-status on a post-offer medical
questionnaire. Lundy v. Phillips
Staffing, 2014 U.S. Dist. LEXIS 26532
(D.S.C., March 3, 2014).
Phillips Staffing contacted Walter
Lundy in the summer of 2011 to
fill a temporary position at Hubbell
Lighting. During the intake process,
driver’s license, which required a
routine medical exam. During the
exam, Lundy truthfully responded to a
question about any medications he was
taking by mentioning his HIV-related
meds, which led to the medical report
noting that he was taking prescription
drugs for HIV. The medical report
also certified him as fit to receive
the commercial driver’s license.
When Phillips received the medical
report, they compared it to the intake
questionnaire, noted the omission
of HIV from that questionnaire, and
discharged Lundy.
Lundy claims
that at the meeting at which he was
discharged, his HIV-status was
specifically mentioned.
The court pointed out that under Bragdon v.
Abbott and the 2008 Americans with Disabilities
Act Amendments Act an asymptomatic person
can qualify for protection.
Lundy completed a post-offer medical
questionnaire that asked if he had “any
other disease, condition or impairment
which is permanent in nature.” Lundy
answered no, although he was HIVpositive and taking medication to
control his infection. Lundy asserts
that he understood the question to
refer to conditions that would impact
his ability to work, based in part on a
statement on the form that “the purpose
of this form is to insure that you will
be able to safely and successfully
perform all job functions.” The form
also stated that “failure to answer this
questionnaire truthfully may result
in your termination for falsifying
documents.”
Lundy’s work for Hubbell went well,
and Hubbell decided to consider him
for a forklift operator position, which
would require him to get a commercial
Lundy sued, alleging a violation
of the ADA. Phillips defended on
several grounds, arguing that Lundy
was not a qualified individual with a
disability under the ADA because his
infection was asymptomatic and not
substantially limiting any major life
activity, that the circumstances of his
discharge did not establish a reasonable
inference of discrimination, and
that Lundy did not present sufficient
evidence to suggest that the company’s
articulated reason for his discharge –
falsifying his response to the medical
questionnaire – was pretextual. A
magistrate judge rejected these
arguments and recommended that the
court deny Phillips’ motion. Judge
Cain, taking on the matter de novo,
agreed with the magistrate judge.
First, as to the defense that Lundy
was not a member of a protected
class under the ADA because his
HIV infection was asymptomatic, the
court pointed out that under Bragdon
v. Abbott, 524 U.S. 624 (1998) and the
2008 Americans with Disabilities Act
Amendments Act, an asymptomatic
person can qualify for protection.
“Lundy has shown that he has HIV,
which is a physical impairment that
has a ‘constant and detrimental effect
on the infected person’s hemic and
lymphatic systems from the moment
of infection,’” he wrote, quoting from
Bragdon. Although it is true that many
HIV-infected people can control the
infection through medication to avoid
physical symptoms, under the 2008
amendments, an infectious condition
is to be evaluated in its untreated state
to determine whether it is disabling.
Further, wrote Cain, “Lundy has
attested to getting ‘extremely sick’
due to his diminished immune system.
Thus, Lundy has a physical impairment
that substantially limits one or more
major life activities.”
Next, Phillips argued that Lundy
had failed to meet legitimate job
expectations by his answers to the
medical questionnaire, and cited 4th
Circuit precedent for the point that
compliance with company rules can
be part of an employer’s legitimate
expectations. Cain agreed that failure
to comply with company rules could
be a legitimate reason to discharge an
employee, but noted that an employee
could dispute the charge in trying to
show that the employer’s reason for
discharge is pretextual. “In this case,”
wrote Cain, “the record suggests that
Lundy’s general job performance was
more than adequate. So, Phillips is
hanging its hat on Lundy’s failure
to comply with a company rule –
accurately completing the medical
questionnaire. In response, Lundy
offers evidence that this company
rule, or at least the way in which
Phillips enforces it, is not legitimate.
continued on page 174
Ohio Appeals Court Reaffirms Lack of Protection for Gay
People under State Law
I
t violates neither Ohio’s law against
discrimination nor its public policy
for an employer to discriminate based
on sexual orientation, found the Ohio
10th District Court of Appeals in Burns
v. The Ohio State University College of
Veterinary Medicine, 2014-Ohio-1190,
2014 Ohio App. LEXIS 1101 (March 25,
2014).
The plaintiff, Colby Burns, was
a resident of veterinary clinical
sciences at the College, under the
instruction of Dr. Stephen Birchard,
an associate professor. She alleged
that during the summer of 2008, Dr.
Birchard found out she was a lesbian
and began treating her differently
from other students, including
excluding her from social activities
involving other residents and faculty,
changing her “percentage of effort
on a research grant without her
knowledge,” denying her assistance
from other residents, and making
“comments and jokes of a vulgar
and sexual nature,” such incidents
sometimes taking place in the
presence of her peers, resulting in
“humiliation and embarrassment.”
She also alleged that Dr. Birchard
“contacted or communicated with
prospective employers” about her
sexual orientation, resulting in the
cancellation of job interviews, and
that he refused to provide a reference
to a potential employer. Burns claims
she reported her problems with
Dr. Birchard to the College, which
undertook an investigation, but that
Dr. Birchard’s conduct continued
during and after the investigation.
Burns filed suit in the Court of
Claims, alleging sex discrimination,
sexual harassment, retaliation, and
violation of public policy, but the
trial court granted the College’s
motion to dismiss, finding that her
claims “were insufficient as a matter
of law.”
Judge Julia L. Dorrian wrote for
the court of appeals, “Taking the
factual assertions of appellant’s
complaint as true, the alleged
conduct in this case was repugnant.
The crux of this appeal, however,
is whether the conduct was
actionable under R.C. 4112.02(A)
as discrimination ‘because of sex.’
Appellant does not claim that she
was subject to discrimination or
harassment because she was a
woman; rather, appellant claims
that the alleged discrimination and
harassment occurred because of
her sexual orientation.” The court
was unwilling to accept Burns’
argument that the term “sex” in
to the 5th and 14th Amendments of
the U.S. Constitution in this respect,
either. “Absent a clear public policy
supporting her claim,” wrote Judge
Dorrian, “appellant has failed to
state a claim upon which relief can
be granted.”
“In this appeal, appellant
unabashedly argues for a change
in the law,” continued Dorrian.
“However, this claim and this court
are not the forum for achieving the
change that appellant seeks.
In
recent years, state and federal courts
have increasingly concluded that
laws treating individuals differently
based on sexual orientation violate
The court was unwilling to accept Burns’
argument that the term “sex” in Ohio’s antidiscrimination law could be construed to
extend to sexual orientation.
Ohio’s anti-discrimination law could
be construed to extend to sexual
orientation.
Furthermore, in agreement with
the trial court, the court of appeals
found that there was no public policy
of the state that was violated by
Dr. Birchard’s conduct. As neither
Ohio’s
anti-discrimination
law
nor Title VII of the federal Civil
Rights law state a policy against
sexual orientation discrimination,
the court found that there was
not a “clear statewide or federal
public policy” that could ground
a tort action. Although the city of
Columbus bans such discrimination,
its ordinance does not apply to the
state university and is not a source
of state public policy, and the court
was not willing to accept a citation
principles of equal protection and
due process.” Dorrian cited U. S.
v. Windsor and Lawrence v. Texas
for this point. “Appellant does
not assert equal protection or due
process claims in this case, and the
Court of Claims would have lacked
jurisdiction over such claims had she
raised them. Legislative measures
proposing to amend [the state’s antidiscrimination law and Title VII]
to add the term ‘sexual orientation’
have been, as yet, unsuccessful.
Under our system of separation of
powers, this court’s role is limited
to interpreting and applying R.C.
Chapter 4112 as it currently exists.”
Colby Bur ns is represented by
Erica Ann Probst and the firm
of Kemp, Schaeffer & Rowe Co.,
LPA. ■
MARRIAGE EQUALITY
PUBLIC OPINION – New polling
shows increased support for marriage
equality, even in jurisdictions that still
maintain official bans on performing
or recognizing same-sex marriages,
according to a Washington Post/ABC
poll released on March 5. Half of a
national random sample opined that
same-sex couples have a constitutional
right to marry, and 59% of those
polled expressed support for same-sex
marriage. The poll found that voters
in states that have constitutional bans
on same-sex marriage (most enacted
overwhelmingly through referenda
during the past ten years), 53% now
approve of same-sex marriages. In
other words, the public education effort,
assisted by the string of well-publicized
legal victories, has managed to turn
around public opinion. Addressing
a related hot topic, the poll found that
81% of respondents felt that businesses
should not be allowed to refuse services
to LGBT customers based on the
religious beliefs of the businesses. The
polling took place shortly after Arizona
Governor Jan Brewer vetoed a measure
that would have provided Arizona
businesses and individuals with a
defense against discrimination charges
if they were acting from sincere religious
belief. The question whether Gov.
Brewer would veto the measure received
extensive media coverage and comment,
bringing the question of religiouslymotivated anti-gay discrimination to the
forefront of public consciousness.
U.S. CENTERS FOR MEDICARE AND
MEDICAID SERVICES – Responding
to reports that married same-sex couples
were having difficulty buying family
health insurance policies on exchanges
established under the Affordable Care
Act, the Obama Administration has
issued a memorandum stating that
an insurer that provides coverage to
opposite-sex spouses may not deny
coverage to same-sex spouses. The
memo cites 45 CFR 147.104(e), which
provides that non-grandfathered group
or individual health insurance coverage
cannot employ marketing practices or
benefits designs that discriminate on the
basis of, inter alia, sexual orientation.
The issuance of this memo caused at
least one married same-sex couples
that had filed suit after their attempts
to buy family coverage were rebuffed
to withdraw their lawsuit, according
to news reports. However, despite the
issuance of this memorandum, there
continued to be news reports of samesex couples encountering difficult as
the March 31 deadline for the first open
enrollment period under the ACA drew
near.
ERISA – The Employee Retirement
Income Security Act (ERISA), a federal
statute, preempts state laws regulating
employee benefits plans. Employers who
self-insure their employees rather than
purchasing group insurance policies
that are subject to state regulation are
virtually exempt from regulation of
the content of their employee benefit
plans due to this preemption provision,
which provides that such self-insured
employers shall not be “deemed” to
be insurance companies and thus not
subject to state regulation. This leaves
the question whether self-insured
employers can refused to recognize
same-sex marriages for purposes
of health insurance coverage? The
Seattle Times (March 25) reported
that Missouri-based O’Reilly Auto
Parts, which employs 2200 workers in
Washington, a marriage equality state,
had been refusing to enroll same-sex
spouses of employees in its self-insured
plan. Complaints led the state’s attorney
general to approach O’Reilly on the issue
and to file a complaint in King County
Superior Court, but the company agreed
that starting April 1 it would extend
same-sex spousal benefits voluntarily,
contending it was not obliged to do
so due to ERISA preemption of state
law. The lawsuit had been premised
on the state’s Consumer Protect
Act, which prohibits discrimination
against consumers in a commercial
setting, but there were certainly doubts
whether this law could be applied to
the practices of an employee benefits
plan. The newspaper reported that a
U.S. Labor Department spokesperson
said that there was no federal mandate
for employers with ERISA plans
to cover same-sex spouses, but that
the Department recommended that
employers do so. The State Insurance
Department confirmed that it had no
jurisdiction over self-funded plans. The
Attorney General’s Office, in support
of its lawsuit, claimed that ERISA did
not trump the Consumer Protection
Act, but one can certainly question that
conclusion in light of the wording of
ERISA’s preemption provision.
4TH CIRCUIT – The 4th Circuit has
announced a briefing and argument
schedule for Bostic v. Schaefer, No. 141167, an appeal by two county clerks
of the recent ruling by District Judge
Wright Allen in the Eastern District of
Virginia, holding Virginia’s marriage
equality ban unconstitutional. Briefing
is to be concluded by April 30, and
oral argument will be held on May
13. Since state officials have dropped
their defense of the ban, arguing that it
is unconstitutional, the caption on the
court’s order now lists Norfolk County
Clerk George E. Schaefer, III, as the
lead appellant-defendant. In addition
to setting an expedited schedule for
considering this appeal, the court
granted a motion to intervene filed by
plaintiffs in the other Virginia marriage
equality case, pending in the Western
District of Virginia before Judge
Urbanski. Urbanski recently certified
the case as a class action, so that ACLU
and Lambda Legal, co-counsel in the
case, are representing all same-sex
couples in the state who are interested
in marrying or having their out-ofstate marriages recognized except the
MARRIAGE EQUALITY
named plaintiffs in Bostic. The court’s
order, filed on March 10, permits the
intervenors to file separate briefs but
does not mention whether they will also
be entitled to participate in the argument.
Lead counsel for the Bostic plaintiffs
are David Boies and Ted Olson, retained
by the American Foundation for Equal
Rights, which had been formed to bring
the California Proposition 8 Case.
Interestingly, the court imposed limits
on all briefs of 14,000 words. * * * In
briefs filed on behalf of the two county
clerks defending the Virginia marriage
ban in Bostic, the appellants claim that
severing marriage from procreation
will result in opening up marriage to
opportunists seeking tax breaks, who
have no intention to form a family, such
as, for example, brothers, reported the
Virginia Pilot & Ledger. The Richmond
Times Dispatch reported on March 29
that a brief filed on behalf of Norfolk
Circuit Court Clerk George Schaefer
concedes that the right to marry is a
“fundamental right,” but argues that
the trial court “overstepped its authority
in declaring this fundamental right
extended so far as to override the state’s
authority to regulate the definition of
marriage.”
9TH CIRCUIT – On January
21, a 9th Circuit panel ruled in
SmithKlineBeecham
v.
Abbott
Laboratories, 740 F.3d 471 (9th Cir.
2014), that an attorney could not use a
peremptory challenge to remove a gay
juror without cause, because, in the
view of the panel, the 9th Circuit’s prior
case law had been superseded by U.S.
v. Windsor, as a result of which sexual
orientation discrimination claims are
subject to heightened scrutiny, in the view
of that three-judge panel. There ensued
a tense period, as Abbott requested and
received an extension of time to decide
whether to petition for rehearing en banc
rather than accept a remand to retry
the antitrust claim concerning pricing
of AIDS medications. Meanwhile the
panel ruling had an immediate impact
on pending same-sex marriage litigation
in the 9th Circuit (currently under way
in Arizona, Idaho, Nevada and Oregon),
as the governor and attorney general of
Nevada agreed that the state could not
meet the burden of heightened scrutiny,
so they would not present a substantive
defense to the state’s marriage ban in
Sevcik v. Sandoval. (The ban is being
defended on appeal by a group that
had supported passage of the Nevada
Marriage Amendment.) Had the 9th
Circuit granted en banc review, the
SmithKlineBeecham panel decision
would have been suspended, throwing
pending marriage litigation into
potential confusion. Abbott allowed the
deadline to pass without filing a petition
for en banc review, and a spokesperson
indicated it would not file a petition for
certiorari, either. It appeared that the
9th Circuit would not be reconsidering
its ruling. However, in a startling
development later in March, after the
time had passed within which a party
could petition for en banc review, a 9th
Circuit judge (identity undisclosed)
requested that the court consider on
its own motion whether to take up the
matter en banc, and the court issued a
directive to the parties to submit briefs
on the question whether such review
should take place. The 9th Circuit had
previously scheduled oral argument in
Sevcik for April 9, then cancelled that
date without announcing a new one.
Perhaps a debate is going on within
the 9th circuit about whether a more
definitive statement on the heightened
scrutiny issue should be made by an en
banc panel before considering Sevcik
and before further developments in
the district court marriage equality
litigation in the other states in the
circuit that don’t yet recognize marriage
equality. A grant of en banc review in
SmithKlineBeecham would delay things
considerably if the court were then to
abstain from scheduling a hearing in
Sevcik until after issuing an en banc
decision in SmithKlineBeecham. A
grant of en banc review means a new
round of briefing, new oral arguments,
and time to draft a new opinion in
that case. If the circuit were to delay
hearing Sevcik until all of these steps
had occurred, marriage equality
litigation within the 9th Circuit could
sit “on hold” for many more months.
Meanwhile, it is possible that there will
be marriage equality decisions from
the 10th and 4th Circuits, which are
hearing oral arguments in the Utah,
Oklahoma and Virginia cases in April
and May, and the 6th Circuit, which
will probably be hearing argument this
summer in cases from Ohio, Kentucky
and Tennessee, with certiorari petitions
to follow from which side loses in those
cases. This may effectively relegate the
9th Circuit to irrelevancy on the issue if
the Supreme Court takes up one or more
cases from another circuit during its
2014-15 term.
10TH CIRCUIT – Between merits briefs
and amicus briefs, more than half of the
state attorneys generals in the country
have communicated their views to the
10th Circuit Court of Appeals as it takes
up marriage equality decisions from
Utah and Oklahoma. Final briefs were
due by the end of February. According
to the National Law Journal (March
6), sixteen states and the District of
Columbia had filed briefs supporting
the marriage equality rulings, while
a dozen states, including the two
defendant states, filed briefs supporting
the bans on same-sex marriage. In
addition to attorneys general filings,
amicus briefs supporting the Utah
and Oklahoma governments’ appeals
came from the Family Research
Council, the Institute for Marriage
and Public Policy, the Church of Jesus
Christ of Latter Day Saints (Mormon
Church), and a large number of Utah
state legislators and county officials.
Arrayed on the opposite side, defending
the court decisions, were the American
Sociological Association, the American
MARRIAGE EQUALITY
Psychological
Association,
bar
associations, civil and human rights
groups, public interest organizations,
and the ACLU and Lambda Legal
from the public interest bar. National
Center for Lesbian Rights is directly
involved in the case as co-counsel for
the Utah plaintiffs. Oral argument will
be held on April 10 (Utah) and April
17 (Oklahoma) before the same threejudge panel, with the likelihood that a
single decision will be issued covering
both cases. Given the court’s expedited
briefing schedule and universal
agreement that ultimately the question
must be decided by the Supreme Court,
one suspects that the circuit court panel
will not dawdle over issuing an opinion.
This schedule is lightning speed for
a federal circuit court, as the Utah
appeal was filed on February 3 and the
Oklahoma appeal on February 24. * *
* At the end of March, the 10th Circuit
announced the composition of the panel
that will hear both cases: Jerome A.
Holmes (appointed by George W. Bush),
Carlos F. Lucero (appointed by Bill
Clinton), and Paul J. Kelly, Jr. (appointed
by George H. W. Bush). None of the
four Obama appointees were included
on the panel. However, it seems likely
that if there is a split decision, a petition
for rehearing en banc would be filed
by the losing side. There are 11 active
judges on the circuit, 6 appointed by
Democratic presidents and 5 appointed
by Republican presidents, and there is
one vacant seat.
COURT
OF
APPEALS
FOR
VETERANS CLAIMS – A change in
the government’s position and policies
since U.S. v. Windsor rendered moot
an appeal by a lesbian military veteran
from a denial of benefits for her samesex dependent spouse, ruled the Court
of Appeals for Veterans’ Claims in
Cardona v. Shinseki, 2014 U.S. App.
Vet. Claims LEXIS 358 (March
11, 2014). The court noted that the
Department of Veterans Affairs, which
had resisted recognizing same-sex
marriages because the benefits statute
had an express definition of spouse that
excluded such marriages, had changed
its tune after a federal district court
declared the relevant provision, 38
U.S.C. Sec. 101(31), unconstitutional in
light of Windsor. See Cooper-Harris
v. U.S., 2013 WL 4607436 (C.D. Cal.,
Aug. 29, 2013). Indeed, the Board of
Veterans’ Appeals decision denying the
claim on August 30 was superseded by a
presidential directive to cease enforcing
that section. The Secretary filed a
motion to vacate the Board decision
on appeal and to remand the matter to
award benefits, which was opposed by
Cardona, who was seeking a ruling
that the provision was unconstitutional.
But the DVA initiated the process of
payment on Cardona’s claim, and on
November 22 the Secretary filed a
motion to dismiss with the Court of
Appeals, informing the court that “full
spousal benefits (including those past
due) had been paid by the Secretary and
received by the Appellant” and arguing
that the case was now moot. Despite a
valiant effort by Cardona to persuade
the court that an appellate ruling on the
merits was needed to guard against the
possibility that a future administration
might reverse course on this matter, the
court concluded that this hypothetical
contingency was insufficient to justify
denying the Secretary’s motion, stating
(per curiam): “The mere speculation
that such a reversion could conceivably
happen in the future is insufficient to
avoid a finding of mootness.”
ALABAMA – Pat Fancher, mother of
the deceased David Fancher, has filed a
Motion to Intervene in Hard v. Bentley,
Civ. Action No. 2:13-CV-922-WKWSRW (M.D. Alabama), a pending
federal court action in which Paul Hard,
the surviving spouse of Mr. Fancher
from an out-of-state same-sex marriage,
is suing for a declaration that their
marriage must be recognized in the
context of administration of Fancher’s
estate and, most specifically, possible
damages in a wrongful death action
that the state is maintaining. Under
Alabama law, Fancher’s surviving
mother would be entitled to damages if
he died unmarried. Alabama law bans
recognition of same-sex marriages.
Hard contends that this violates his
14th Amendment rights and seeks an
order from the federal district court. In
seeking to intervene as a defendant, Mrs.
Fancher alleges that her interest in the
outcome is not adequately represented
by Governor Robert Bentley and other
named government official defendants.
In her motion, Fancher states that she
“is deeply disturbed that the death of her
son David, whom she deeply loved and
with whom she had a good relationship,
is being used by Plaintiff Paul Hard to
advance the cause of same-sex marriage
which she strongly opposes. She is
also focused upon issues concerning
the establishments of David Fancher’s
legal heir and the distribution of David
Fancher’s estate, insurance proceeds,
and proceeds from the wrongful death
action.” She is represented by attorney
Gabriel J. Smith of the Foundation for
Moral Law (surprise, surprise!).
ALABAMA – Shrie Michelle Richmond
and Kirsten Allysse Richmond, who
married in Iowa in 2012, filed a petition
in the Madison County Circuit Court
seeking a divorce. Problem: The
Alabama Marriage Protection Act,
passed in 1998, bans same-sex marriage,
and the state does not recognize such
unions. Shrie’s attorney, who filed the
petition, says the marriage has broken
down and the women need to have it
legally dissolved, since now the federal
government
recognizes
same-sex
marriages. Since neither of the women
is a resident of Iowa, they can’t get a
divorce there. The attorney, Patrick Hill,
said the petition had to be filed by hand
because of the computer filing system
requires identifying the gender of the
MARRIAGE EQUALITY
spouses and rejects petitions showing
two spouses of the same sex. Huntsville
Times, March 12. On March 14, the
Huntsville Times reported that Madison
County Circuit Judge Karen Hall had
entered a one-sentence order, saying
that the divorce petition does not contain
any claims where relief can be granted
“pursuant to the laws of this state,”
leaving the Richmonds wedlocked.
Attorney Hill indicated that the ruling
would be appealed, seeking appellate
authority that Alabama must recognize
out-of-state same-sex marriages, at least
for purposes of divorce, as a matter of
equal protection.
ARIZONA – Lambda Legal and
cooperating attorneys from Perkins Coie
LLP’s Phoenix office filed a complaint
for injunctive and declaratory relief in the
U.S. District Court in Arizona on March
13 on behalf of 16 Arizonans who seek
to marry same-sex partners or garner
recognition of same-sex marriages that
were celebrated in other jurisdictions.
The plaintiffs include seven same-sex
couples who wish to marry and were
denied licenses by the Maricopa County
Superior Court Clerk. The other two
plaintiffs are surviving spouses from
out-of-state same-sex marriages who
have been denied the status of surviving
spouses. Because of developments in
the 9th Circuit this year, the district
court will be bound to apply heightened
scrutiny in Majors v. Horne, placing the
burden on the state to show that its ban
on the creation or recognition of samesex marriages substantially advances
an important state interest, unless the
9th Circuit decides to reconsider its
recently-created precedent en banc (see
Marriage Notes, pg 149). The named
defendants are Attorney General Tom
Horne, Health Department Director Will
Humble, and Maricopa County Superior
Court Clerk Michael K. Jeanes, all sued
in their official capacities. The bulk of
the complaint is devoted to biographical
information about the plaintiffs,
showing how they have been harmed by
the state’s refusal to let them marry or to
recognize their out-of-state marriages.
Plaintiffs argue that Arizona’s ban,
embodied in a constitutional amendment
and statutes, fails to meet any standard
of review, from rational basis to strict
scrutiny. Their legal theories are equal
protection (sexual orientation and sex)
and denial of liberty in violation of due
process. Plaintiffs seek a declaration of
unconstitutionality and preliminary and
permanent injunctive relief, together
with recovery of the costs and attorney
fees for the action. Later in March, the
courts considering marriage equality
suits in Arizona federal district courts
received a motion seeking to consolidate
the cases into one proceeding.
FLORIDA – A marriage recognition
case was filed on February 28 in U.S.
District Court for the Northern District
of Florida on behalf of James Domer
Brenner and Charles Dean Jones, who
were married in Canada and live in
Tallahassee. Two Jacksonville attorneys,
Bill Sheppard and Samuel Jacobson,
represent the plaintiffs in Brenner v.
Scott. They are suing Governor Rick
Scott and Attorney General Pam Bondi
in their official capacities, claiming that
in light of U.S. v. Windsor Florida must
recognize their marriage. Brenner and
Jones, who married in 2009, have lived
together as a couple since 1988. Brenner
works for the Florida Forest Service and
Jones for the Florida Department of
Education. The suit seeks a temporary
injunction so that Brenner can designate
Jones as his spouse or joint annuitant
under the state’s Deferred Retirement
Option Program, and ultimately seeks
permanent injunctive relief. Florida
Times-Union, March 4. * * * The ACLU
Foundation of Florida, the ACLU
LGBT Rights Project, and local counsel
Stephen F. Rosenthal of Miami filed suit
on March 12 in the U.S. District court
for the Northern District of Florida in
Tallahassee on behalf of eight same-sex
couples and a non-profit organization,
the SAVE Foundation, Inc., challenging
the constitutionality of Florida’s ban
on recognizing same-sex marriage.
The named defendants in Grimsley v.
Scott, sued in their official capacity,
include Governor Rick Scott, Attorney
General Pam Bondi, Surgeon General
and Secretary of Health John H.
Armstrong, and Florida Department of
Management Services Secretary Craig
J. Nichols. All of the plaintiff couples
have married in other jurisdictions and
are seeking to have their marriages
recognized in Florida. The SAVE
Foundation, founded in 1993, works
on projects advancing LGBT equality,
and is suing as a representative of its
married members who seek to have
their marriages recognized in Florida.
The complaint relies on due process
and equal protection theories, and seeks
declaratory and injunctive relief as well
as the award of costs and attorney fees.
INDIANA – On March 7, a group of
same-sex couples in Indiana filed
suit challenging the state’s ban on
performing or recognizing same-sex
marriages. The case is Love v. Pence,
14-cv-00015 (U.S. Dist. Ct., S. D.
Indiana (New Albany)). The case was
filed shortly after Indiana legislators
put off a public referendum on a
proposed constitutional amendment for
at least two more years by altering the
amendment that had been approved by
the legislature last year. The Indiana
constitution requires that a proposed
amendment be approved in identical
form by two legislatures, an election
intervening. The original version of the
amendment would have gone beyond
banning same-sex marriage to prohibit
the state from creating any sort of legal
status for same-sex couples, but firm
opposition to this broader ban led to a
successful move to strip the amendment
down to a marriage ban. The same
law firm that is litigating the Kentucky
marriage case is also behind the Indiana
MARRIAGE EQUALITY
case. Some gay rights advocates in the
state were critical of the new lawsuit,
finding it following too closely on
the legislature’s consideration of the
constitutional amendment, perhaps
fearing that this will incentivize the
legislature to come back to the issue
and approve the original amendment.
* * * Just days later, Lambda Legal,
cooperating attorneys from Kirkland
& Ellis LLP’s Chicago office, and local
counsel Barbara J. Bair of Indianapolis
filed suit in the U.S. District Court for the
Southern District of Indiana in Baskin
v. Bogan, 1:14-cv-0355 TWP-MJD,
seeking a declaration that Indiana’s
statutory ban on same-sex marriage
violates the 14th Amendment equal
protection and due process guarantees.
The case was filed on behalf of three
same-sex couples who seek to marry
in Indiana. Although none of the
couples have married elsewhere, the
complaint also asks the court to declare
unconstitutional Indiana’s ban on
recognizing same-sex marriages from
other jurisdictions, which prevents them
from forming recognized marriages by
getting married in a neighboring state,
such as Illinois. The named defendants,
sued in their official capacities, are
Boone County Clerk Penny Bogan,
Porter County Clerk Karen M. Martin,
Lake County Clerk Michael A. Brown,
and Attorney General Greg Zoeller.
Zoeller’s office has announced that
he will defend against the marriage
equality lawsuits.
The case was
assigned to District Judge Tanya Walton
Pratt, the first African-American judge
to serve in the Southern District of
Indiana, who was appointed in 2010
by President Barack Obama. * * *
Another suit was filed in the Southern
District of Indiana on March 14 by the
Richard Mann law firm, on behalf of a
lesbian couple married in Iowa whose
marriage was refused recognition
in Indiana, and another lesbian who
was married in Iowa and is seeking to
divorce her wife in the Indiana courts.
Bowling v. Pence, No. 1:14-cv-0405-
SEB-DKL. The case was assigned to
District Judge Sarah Evans Barker, who
was appointed by President Ronald
Reagan in 1984 and served for a time
as chief judge of the court. The named
defendants are Governor Michael Pence,
Attorney General Gregory Zoeller,
Commissioner of Revenue Michael
Alley (whose Department has refused
to recognize same-sex marriages for
tax filing purposes) and Anita Samuel,
executive director of the Department of
State Personnel (whose Department has
refused to recognize same-sex marriages
for purposes of state employee benefits).
The firm announced on its website that
it held back filing suit at the request of
groups that were opposing HJR3, the
bill that would have put an anti-gay
marriage referendum on the ballot this
year, but decided to go ahead after the
legislature recessed, having approved a
form of the bill that will put off such a
referendum until 2016 at the earliest. *
* * A fourth suit, Lee v. Pence, Cause
No. 1:14-cv-406-JMS-DKL, was filed
in the Indianapolis Division of the
U.S. District Court for the Southern
District of Indiana on March 14 by four
Indianapolis attorneys on behalf of a
group of married same-sex couples,
arguing that the state’s refusal to
recognize their marriages violates equal
protection, due process, and the Full
Faith and Credit Clause.
KENTUCKY – On February 27, U.S.
District Judge John G. Heyburn II issued
an Order implementing his February 12
decision in Bourke v. Beshear, 2014 U.S.
Dist. LEXIS 17457 (W.D. Ky.), holding
that Kentucky must recognize samesex marriages contracted elsewhere.
During a court hearing on February
26, Judge Heyburn granted plaintiffs’
motion to add more plaintiffs and
expand the action to address whether
Kentucky was required to allow samesex couples to marry, resulting in the
case before him now being named Love
v. Beshear, Civ. Action No. 3:13-CV-
750-H. Although Kentucky Attorney
General Jack Conway had not requested
a stay of the court’s ruling pending
appeal up to that time, he filed a motion
early on February 27, requesting a
90 day stay while he continued to
consider whether to appeal the case
to the 6th Circuit. Judge Heyburn
held another hearing, on February
28, to consider this stay request. He
decided to grant a stay until March
20, as providing sufficient time for the
Attorney General to make up his mind
and, in case the Order went into effect,
for the state to take steps necessary to
comply. Conway deliberated over the
weekend and announced on March 4
that he would not appeal, stating that
he would not “defend discrimination”
and that Judge Heyburn had “gotten it
right” in his ruling. Governor Steve
Beshear immediately issued a statement
announcing that he would retain outside
counsel to appeal on behalf of the state.
The governor did not inveigh against
same-sex marriage in his statement,
or even affirmatively vow to protect
traditional marriage. Instead, he pointed
out that the issue of same-sex marriage
was headed to the Supreme Court, that
a stay had been granted pending appeal
in every other marriage equality case
that has been decided thus far, and that
“the opportunity for legal chaos is real”
if a stay cannot be obtained. If Judge
Heyburn would not stay his Order, then
the state had to appeal to get a stay
from the 6th Circuit. Governor Beshear
expressed concern about various
hypothetical harms should a stay not
be issued, and concluded that “all
Kentuckians deserve an orderly process
that will bring certainty and finality
to this important matter.” The state
subsequently opened for bids the job of
providing legal representation at the state
rate of $125 an hour, which would likely
attract ideologically-oriented lawyers
and present the state with the question
whether they were going to present a
gay-bashing case to the 6th Circuit,
or stick with the argument Conway’s
MARRIAGE EQUALITY
office had made to the district court.
Conway had eschewed the arguments
about procreation and child-rearing that
all post-Windsor courts have rejected,
instead relying on tradition and the idea
that marriage is a political question that
should not be decided by federal courts.
The 6th Circuit is already considering
a marriage recognition case from
Ohio, Wymyslo v. Obergefell. Judge
Heyburn issued a briefing schedule for
the remainder of the marriage equality
case presented by the new plaintiffs
that should have the matter set up for
a summary judgment ruling by June.
Then Beshear, rejecting applications
from such right-wing groups as Liberty
Counsel, selected a small local law firm
to handle the appeal, and, on March 19,
secured an Order from Judge Heyburn
staying the ruling pending appeal, Love
v. Beshear, 2014 U.S. Dist. LEXIS
36076. Wrote Heyburn, “The Court has
concerns about implementing an order
which has dramatic effects, and then
having that order reversed, which is one
possibility. Under such circumstances,
rights once granted could be cast in
doubt.” Thus, even though a review
of the factors normally considered in
deciding whether to stay a trial court
ruling were at best “mixed” and not
a clear case for granting a stay, the
Supreme Court’s January 6 stay in the
Utah marriage case proved persuasive.
“It is best that these momentous
changes occur upon full review,” wrote
Heyburn, “rather than risk premature
implementation or confusing changes.
That does not serve anyone well.” Thus,
he left it up to the 6th Circuit whether to
lift this stay.
NEBRASKA – In a pending wedlock
case, Nichols v. Nichols, counsel for one
of the women seeking a divorce from a
same-sex marriage that was celebrated
in Iowa in 2009 is asking that the matter
by-pass the state’s court of appeals
and go directly to the Supreme Court.
Margie and Bonnie Nichols exchanged
rings in an unofficial 1996 civil union
ceremony and had a child through donor
insemination in 2003, before marrying in
2009, but their relationship subsequently
faltered and they are no longer living
together. However, dissolving their
marriage would require one to relocate
and establish residency in Iowa.
Meanwhile, the federal government now
recognizes legally contracted same-sex
marriages, requiring them to get a legal
divorce if they don’t want to be required
to file federal taxes as married and
incur other responsibilities as spouses
under federal law. Regardless of these
complications,
Lancaster
County
District Judge Stephanie Stay ruled in
August that she must dismiss the case,
writing: “A finding that the marriage is
irretrievably broken – by its very nature
– cannot be made without recognizing
the marriage itself, and it stretches
logic and common sense to conclude
otherwise.” Since Nebraska law forbids
recognizing same-sex marriages, Stacy
felt compelled to dismiss. The ACLU
of Nebraska and Legal Aid of Nebraska
filed briefs in support of the appeal on
March 27, but the state’s attorney general
has also filed a brief arguing that the
case should be dismissed, that the court
should not consider the constitutionality
of Nebraska’s refusal to recognize the
marriage in this context, and that there
is no constitutional right to divorce.
The amici argue that the court can
decide the case without considering
the constitutionality of Nebraska’s
recognition ban, and that depriving the
parties of a vehicle to end their marriage
violates due process and equal protection
guarantees of the 14th Amendment.
Legal Monitor Worldwide, 2014 WLNR
8531551 (March 29, 2014).
OREGON – A pending initiative asking
voters to approve a law that would
shield from liability employers who
refuse to provide good and services
based on their religious beliefs suffered
a potential setback when the office of
Attorney General Ellen Rosenblum
issued a certified ballot title that, over
the opposition of the proponents,
referred to the discriminatory nature of
the proposal. The certified ballot title
states: “Religious belief” exceptions to
anti-discrimination laws for refusing
services, other, for same-sex ceremonies,
“arrangements”. Friends of Religious
Freedom, the group sponsoring
the proposal, argued that including
“discrimination” in the title introduced
a “politically charged” word that biased
voters against the measure. Well, good!
It is a measure virtually authorizing
discrimination, creating a big loophole
in the state’s public accommodations
law, and the voters should be told that
when they are asked to approve it.
PENNSYLVANIA – U.S. District Judge
Mary A. McLaughlin is not interested in
hearing religiously-based or moralistic
arguments in defense of Pennsylvania’s
ban on same-sex marriages, to judge
by her March 4 ruling in Palladino
v. Corbett, 2014 U.S. Dist. LEXIS
27154 (E.D. Pa.), rejecting a motion
by Philadelphia Metro Task Force to
intervene as a co-defendant. This is
a marriage recognition suit, brought
by a same-sex couple who married
in Massachusetts and, now residing
in Pennsylvania, wants the state to
treat them as married, contrary to
Pennsylvania law. James D. Schneller,
“a resident of the Philadelphia
suburbs,” filed the intervention motion
on behalf of himself and the Task
Force, described as a “community
organization formed to support and
encourage upholding of family values
and morality in government.” Motions
to dismiss the lawsuit filed on behalf of
Gov. Tom Corbett and Attorney General
Kathleen Kane were filed late last year,
and plaintiffs’ motion for summary
judgment was filed January 13. The
movants claim that the litigation
instigated by the plaintiffs has caused
movants to endure “derogation of rights
MARRIAGE EQUALITY
to comfort, and basic necessities like
safety and well-being, and derogation
of additional rights including rights to
defend liberty and property; causing
. . . emotional distress, perception of
failure of official duty.” Some of this
angst is undoubtedly due to Kane’s
statement that she will not provide a
substantive defense to Pennsylvania’s
anti-marriage laws. According to their
motion, movants are seeking to protect
their interests in “liberty, religious
expression, freedom from seizure and
confiscation.” How order the state
to recognize out-of-state same-sex
marriages would impair these interests
is uncertain. In any event, Judge
McLaughlin decided that the movants
did not have the kind of direct, concrete
interest that would give them a right to
intervene, and that they had not shown
that the defense of state law being
presented by the governor would be
“inadequate.” She found that “a state
government is presumed to adequately
represent the interest of its citizens.”
“Throughout their application,” she
wrote, the movants question whether
Attorney General Kane will adequately
represent their interests in defending
the statute. However, the movants do
not question whether Governor Corbett
will defend the constitutionality of the
Pennsylvania statute at issue.” Thus,
they had not overcome the presumption,
and grounds for intervention were
absence, since their application “evinces
only a general ideological interest in this
lawsuit,” not some personalized stake
in the outcome. Anticipating the next
question down the line, McLaughlin
preemptively dismissed any attempt
by the movants to submit an amicus
brief. “There are no legal arguments
made by the movants that would assist
current counsel,” wrote the judge,
and the Court cannot determine any
‘special interest’ held by the movants
that entitles them to participate in this
action.” Thus, extraneous religious or
moral arguments are excluded from
consideration in the case.
PUERTO RICO – Ada Conde Vidal
and Ivonne Alvarez Velez filed suit on
March 25 in the U.S. District Court in
Puerto Rico against Health Secretary
Ana Rius Armendariz and Wanda
Llovet Diaz, director of the Puerto
Rico Demographic Registry, claiming
that Puerto Rico’s refusal to recognize
their same-sex marriage, contracted
in Massachusetts in 2004, violates
their equal protection and due process
rights under the 14th Amendment. At
present, such recognition is banned
under a Puerto Rico statute enacted in
1999, anticipating the possibility that
same-sex marriages might become
available in other jurisdictions. Citizens
of the commonwealth of Puerto
Rico are entitled to the same federal
constitutional protection as those in the
50 states. Local LGBT rights advocates
noted that Governor Alejandro Garcia
Padilla had hailed the Supreme Court’s
ruling in Windsor last June, under which
Conde and Alvarez do enjoy recognition
from the federal government, leading
the advocates to hope that the
commonwealth government will not
mount a substantive defense of the
recognition ban. Conde v. Armendariz.
Washingtonblade.com, March 26.
SOUTH CAROLINA – South Carolina
is one of the states that still has common
law marriage, so John Reckenbeil, an
attorney for Cathy Swicegood, has filed
an action in the Greenville County
Family Court seeking a divorce for
Swicegood from her former same-sex
partner, Polly Thompson. The women
lived together for 13 years, owned
property jointly, and Swicegood was
receiving insurance coverage under
Thompson’s employment insurance.
Reckenbeil points out that under
COBRA, the federal continuation
coverage provision, a divorce would
be a qualifying event that would allow
Swicegood to continue receiving health
insurance for a statutorily defined
period by paying premiums to the
employer. The suit alleges that the
women had a common law marriage
and seeks the usual divorce decree,
dividing rights to property and formally
ending the relationship. Thompson’s
attorney,
Margaret
Chamberlain,
said that the lawsuit was “horribly
misguided” because the women never
held themselves out as married and,
given developments around the country,
could have gone somewhere to get
a marriage license if that was their
intention. Reckenbeil stated that he
expected to lose in Family Court, but
hoped to take the case on to the federal
courts. Swicegood v. Thompson (S.C.,
Greenville County Family Court). The
State, March 15.
VIRGINIA – Notices of appeal have
been filed with the 4th Circuit in
Bostic v. Rainey, following Judge
Arenda Wright Allen’s release of her
final Order in the case. In addition to
the two defendant county clerks, the
Attorney General’s office also filed an
appeal. Even though that office is no
longer defending Virginia’s ban against
same-sex marriages, it filed the appeal
“to speed up the appeals process,” as
everybody concerned realizes that the
Order is stayed and same-sex couples
will not be able to marry in Virginia
until there is a final appellate resolution
of the case. Associated Press, Feb. 26.
WISCONSIN – When the Supreme
Court issued a stay in Herbert v. Kitchen,
134 S. Ct. 893 (2014), blocking the Utah
district court’s marriage equality ruling
from going into effect pending a ruling
on the state’s appeal in the 10th Circuit,
the Court effectively communicated to
all district courts that orders to states
to issue marriage licenses to same-sex
couples should be put “on hold” pending
appeal. That being the case, asked U.S.
District Judge Barbara B. Crabb (W.D.
Wis.), what sense did it make for her
to rule on a motion for preliminary
MARRIAGE / CIVIL LITIGATION
injunction in Wolf v. Walker, 2014 U.S.
Dist. LEXIS 27225 (March 4, 2014), a
marriage equality case pending in her
court? “Of course,” she wrote, “the
premise of a preliminary injunction is
that relief is needed now and cannot
wait until the case is fully litigated. If
a preliminary injunction must be stayed
as soon as it is entered, it is not clear
what purpose it serves.” So Judge Crabb
offered the plaintiffs a deal: if they would
withdraw their motion she would adopt
an “expedited schedule for summary
judgment and trial.” If they want to stay
with the motion, she said they should
file a supplemental memorandum
addressing whether, in light of Herbert,
“it would be appropriate to enforce any
preliminary injunction entered in this
case before a final disposition” by the
7th Circuit, and if a stay of a preliminary
injunction would be appropriate, what
purpose such an injunction would
serve “that could not be accomplished
by an expedited order.” The lawsuit
was filed early in February on behalf
of same-sex couples seeking to marry
in Wisconsin or have their out-of-state
marriages recognized, represented by
the American Civil Liberties Union, the
ACLU of Wisconsin and the law firm of
Mayer Brown.
WYOMING – The National Center for
Lesbian Rights, Cheyenne attorney
Tracy Zubrod, and the law firms
Arnold & Porter LLP and Rathod
Mohamedbahi LLC, filed suit on March
5 in the Wyoming 1st Judicial District
Court in Laramie County, seeking
declaratory and injunctive relief on
their claim that the state’s refusal to
allow same-sex couples to marry or
to recognize the marriages contracted
out of state by same sex couples
violates the due process and equal
protection guarantees of the Wyoming
Constitution, as well as a statute on
marriage recognition. Courage v. State
of Wyoming, Docket 182, Number 262
(filed March 5, 2014). Wyoming does
not have a constitutional amendment
banning same-sex marriage, and has
codified its marriage recognition rule
in a statute that embodies the common
law rule that a marriage legal where it
was performed will be recognized in
the state. Plaintiffs advance the now
familiar arguments that there is no
rational basis for the state to deny samesex couples the right to marry, and such
denial violates their substantive due
process and equal protection rights.
The complaint asserts claims of sexual
orientation and sex discrimination.
Following the pattern of New Mexico
and New Jersey, the two post-Windsor
marriage equality victories attained in
state courts, the plaintiffs avoid making
federal constitutional claims so their
goal can be achieved without risking
an appeal in the U.S. Supreme Court.
However, depending how fast the
Wyoming state courts deal with this case,
it may well be mooted by developments
in the federal court system, as Wyoming
is in the 10th Circuit, where the federal
court of appeals will hear oral argument
in April in state appeals of marriage
equality victories in the district courts
in Utah and Oklahoma.
CIVIL LITIGATION NOTES
SUPREME COURT – The Court denied
a petition for certiorari in 13-449,
Falls Church v. Protestant Episcopal
Church, refusing to get involved in a
dispute between the Episcopal Church
and the Anglican Church of North
America. Falls Church Anglican broke
away from the Episcopal Church over
various issues, including the Episcopal
Church’s move towards equal rights
for LGBT people, and sought to retain
title to its historic church building and
surrounding property. The Virginia
Supreme Court rejected Falls Church’s
claim, reversing and remanding a
trial court ruling in its favor, and on
remand the trial court ruled against
Falls Church, finding that the Episcopal
Church owned the property.
The
Supreme Court’s denial of certiorari
ends the matter.
U.S. COURT OF APPEALS, 4TH
CIRCUIT – A pro se complaint filed by
a mother on behalf of her elementaryschool age son, who had been subjected
to harassment by other students, was
rejected by the U.S. District Court
for the Eastern District of Virginia,
rejecting claims under Title VI of the
Civil Rights Act of 1964 (race) and
Title IX of the Education Amendments
of 1972 (sex).
The 4th Circuit,
commenting that it would normally
remand for appointment of counsel to
represent the child so that his rights
would not be prejudiced due to the
pro se representation by a non-lawyer
parent, instead affirmed on the merits
the Title VI claims but remanded the
Title IX claim for further development
with counsel representing the plaintiff.
M.D. v. School Board of Richmond,
2014 U.S. App. LEXIS 4509 (March 11,
2014). Numerous public opinion polls
have shown that a majority of the public
mistakenly believes that federal law
outlaws anti-gay discrimination, and
this all too often shows up in federal
court complaints – sometimes even
those drafted by counsel. In this case,
the complaint alleged that the school
board’s failure to take effective action
in response to the homophobia-tinged
harassment of the plaintiff constituted
discrimination based on perceived
sexual orientation, and the district court
found that this failed to state a claim
of sex discrimination under Title IX.
Lambda Legal took over representation
on appeal, and argued the case law
on sexual stereotyping under Title IX
which had been applied to cases of
gender non-conforming gay students.
The court of appeals found that the
matter should be sent back to the district
court on the Title IX claim to allow
M.D. to file a new Title IX complaint
CIVIL LITIGATION
with appropriate factual pleadings.
“With sympathy for M.D.’s plight based
on the allegations in his complaint and
his mother’s attempts to ensure her
son’s well-being, we are nevertheless
constrained to hold that his claim
against the School Board for intentional
discrimination under Title VI fails as
a matter of law. For the reasons above,
we direct the district court to provide
M.D. sixty days to retain counsel and
file an amended Title IX complaint. A
dissenting judge felt it was inappropriate
for the court to have affirmed the Title
VI ruling on the merits, arguing that the
entire case should have been remanded
to allow M.D. to pursue both claims
with counsel.
CIRCUIT – The court denied review of
a decision by the Board of Immigration
Appeals to deny withholding of
removal to a gay man from Guatemala
in Sanchez-Cacatzun v. Holder, 2014
U.S. App. LEXIS 4819 (March 14,
2014). The petitioner’s asylum petition
was found to be untimely, and he had
abandoned any claim that he was
entitled to withholding of removal
or protection under the Convention
against Torture (CAT) on any ground
other than his sexual orientation. The
court noted that its scope of review was
limited, essentially to overrule the BIA
only if the record “compels” it to do
so. “As Sanchez’ contentions consist
of a series of conclusory assertions,
unsupported by citations to the record,
regarding alleged persecution and
torture of homosexuals by Guatemalan
authorities, he fails to show the record
compels reversal,” says the per curiam
opinion.
“Although he maintains
the scarcity of factual support for his
claims is justifiable because the alleged
persecution and torture of homosexuals
in Guatemala is underreported, Sanchez
bears the burden of presenting evidence
showing he was entitled to withholding
of removal and CAT relief.” The
opinion does not mention how long
Sanchez has been in the U.S. or how
he arrived, and also makes no mention
of a State Department Country Report
on Guatemala, which would be the
most frequently-cited sort of evidence
on these issues. The most recently
published State Department report on
Guatemala indicates that gay people
there are not protected from societal
discrimination, which exists, and that
they receive little protection from law
enforcement, but it does not document
active persecution or torture by
government forces specifically aimed at
gay people, although the overall picture
for human rights and lawlessness by law
enforcement officials in dealing with
political dissenters is grim.
CIRCUIT – It has become increasingly
difficult for gay people from Mexico
to argue that they should be granted
refugee status in the United States, as
evidenced by the 9th Circuit’s ruling in
Lomeli v. Holder, 2014 U.S. App. LEXIS
4571 (March 11, 2014). The main issue
in this case was whether the petitioner
could derive U.S. citizenship from his
mother, which had been decided against
him by immigration authorities whose
decision was not rejected by the court.
The Petitioner sought to win the right
to stay in the U.S. through the alternate
route of seeking protection under the
Convention against Torture (CAT),
which the Board of Immigration Appeals
had also rejected. “The BIA took into
account the evidence surrounding
Lomeli’s 1969 encounter with the
police, but that single encounter does
not compel a determination that Lomeli
is likely to be tortured upon his return
to Mexico more than 40 years later,”
wrote the court. “The reports from
the State Department and Amnesty
International indicate that the Mexican
government is making efforts to
improve conditions for members of the
LGBT community, and do not indicate
that government officials engage or
acquiesce in discrimination against or
violence towards homosexuals. The
BIA referenced and applied the correct
standard for CAT claims, and we reject
Lomeli’s argument to the contrary.”
CIRCUIT – Relying on a State
Department
Country
Report
concerning the situation for gay people
in Jordan, the 9th Circuit held that the
Board of Immigration Appeals (BIA)
did not abuse its discretion by refusing
to reopen deportation proceedings for
a man from Jordan who claimed he
would be at risk if he were deported
back to that country. F.A. v. Holder,
2014 U.S. App. LEXIS 5264 (March 20,
2014) (unpublished disposition). F.A.
had initially unsuccessfully petitioned
for asylum, withholding of removal
and protection under the Convention
Against Torture, alleging persecution
“because of his involvement in the
Jordanian peace movement.” He then
removed to reopen the case, “arguing
changed county conditions with respect
to him because his family in Jordan had
learned that he was in a homosexual
relationship in the United States.” The
court held that the BIA “permissibly
took judicial notice of the 2009 U.S.
State Department Report on Jordan,
which stated that homosexuality
was not illegal in Jordan, contrary to
Petitioner’s arguments and the country
condition information that he provided,
which dated from 1995 to 2004. The
BIA permissibly concluded that the
State Department Report showed, at
most, societal discrimination against
homosexuals and that Petitioner
failed to show practices amounting
to persecution of homosexuals or to
torture with the acquiescence of the
government.” The court also noted that
F.A. had “waived any argument that the
BIA failed to give him an opportunity to
respond to the 2009 State Department
report.”
CIVIL LITIGATION
CIRCUIT – The 11th Circuit upheld
a decision by an Immigration Judge,
which had been approved by the Board
of Immigration Appeals, holding that
a gay man from Albania was barred
from seeking asylum in the United
States because he petitioned long after
the expiration of the one year statutory
deadline.
Vukaj v. U.S. Attorney
General, 2014 U.S. App. LEXIS
5205, 2014 WL 1062321 (March 20,
2014). The deadline can be waived
in exceptional circumstances.
In
this case, the Petitioner showed that
when he arrived in the U.S. in 2004
he had not yet come to terms with his
sexual orientation, and that his difficult
struggle to come to an understanding
that he was gay significantly delayed
his decision to petition for asylum based
on the persecution suffered by gays in
Albania. He filed the petition in 2008.
Wrote the court, “The IJ indicated that
he understood why Vukaj did not timely
submit his asylum application, but
concluded that these circumstances did
not meet Vukaj’s burden of proving that
an exception to the one-year time bar
applied in his case.” The court found
this sufficient to refute Vukaj’s argument
that his constitutional due process rights
had been violated by the refusal of the
IJ to grant a waiver of the time bar and
consider his petition on its merits. The
court rejected Vukaj’s argument that
the IJ’s action reflected a reaction to
stereotyped thinking about gays, saying
that he had “heard and thought and not
merely reacted,” a quotation borrowed
from a 2010 decision by the circuit
denying a similar due process claim.
SOCIAL SECURITY DISABILITY
APPEALS
– In DeHaven v.
Commissioner of Social Security,
2014 U.S. Dist. LEXIS 29579 (N.D.
Ohio, March 7, 2014), and Williams v.
Colvin, 2014 U.S. Dist. LEXIS 29820
(N.D. Calif., March 6, 2014), the courts
faulted administrative law judges for
failing to give appropriate weight to
the medical opinions of disability
claimants’ physicians concerning their
physical limitations, or to provide
sufficient explanations of why such
opinions were being discounted. Both
cases involved claimants living with
HIV. In DeHaven, U.S. Magistrate
Judge William H. Baughman, Jr.,
remanded with directions that the ALJ
reconsider the opinions of “acceptable
medical sources in the transcript and
provide articulated good reasons for
the weight assigned to those opinions.”
In Williams, District Judge Yvonne
Gonzalez Rogers reversed the decision
to deny benefits and remanded to the
Social Security Administration solely
for the purpose of calculating and paying
benefits. * * * In Wilson v. Astrue, 2014
U.S. Dist. LEXIS 37040 (N.D. Cal.,
March 19, 2014), U.S. District Judge
Charles R. Breyer affirmed an ALJ’s
finding that the plaintiff’s substance
abuse was a contributing material factor
to the determination of her disability as
to mental impairments and affirmed the
ALJ’s determination of the weight to be
accorded the opinions of various doctors
submitted in this disability claim by a
person living with AIDS, but remanded
the case for further proceedings, finding
that ALJ erred in finding the plaintiff
not credible and in failing to consider
the combined effect of her mental and
physical impairment. Judge Breyer
also found, in consequence of the
foregoing, that further consideration
was needed on the determination of
plaintiff’s residual functional capacity
in deciding whether she was disabled
from working. * * * In Perry v. Colvin,
2014 U.S. Dist. LEXIS 41301 (N.D.
Ill., March 26, 2014), U.S. Magistrate
Judge Sidney I. Schenkier ruled in favor
of the government, rejecting the HIVpositive plaintiff’s application for Social
Security disability benefits. The lengthy
opinion provides in excruciating detail
the medical history of the plaintiff, an
unemployed woman in her 30s who has
been living with HIV for many years and
has also suffered depression and other
psychological difficulties, resulting in
her losing two reasonably well-paying
managerial jobs.
Judge Schenkier
affirmed an equally detailed decision
by an administrative law judge, who
had discounted some of the evidence
from the plaintiff’s treating physicians
as contradictory, and had credited the
conclusion of a vocational expert that
plaintiff was capable of holding down
full-time work.
CALIFORNIA – A self-identified
heterosexual man who claims he was
subjected to sexual harassment by a
male supervisor with a sexual interest
in him and suffered retaliation from
his municipal employer when he
complained about it will get a second
chance to pursue his claims, as the 1st
District Court of Appeal reversed the
Solano County Superior Court’s grant of
summary judgment as to the supervisor
and the judgment on the pleadings
in favor of the city of Benicia. Lewis
v. City of Benicia, 2014 WL 1232694
(March 26, 2014). The court concluded
that the evidence would allow an
inference that the supervisor’s conduct
towards the employee was motivated by
his sex, so the trial court should have
allowed that claim to go to the jury,
which only heard the retaliation claim.
The court of appeals also disputed
the trial court’s determination that the
evidence could not support a finding
that the supervisor’s conduct was severe
or pervasive enough to support a cause
of action for harassment. However,
the court agreed with the trial court’s
grant of summary judgment in favor of
another supervisor who was a named
defendant. Finding that judgment on
the pleadings for the city was derivative
of the judgment with respect to the
harassing supervisor, the court reversed
those rulings as well. The court found
that the trial court abused its discretion
by excluding certain evidence relevant
to the retaliation claim, including
CIVIL LITIGATION
precluding an expert witness from
testifying about the plaintiff’s emotional
distress. (The exclusion of this evidence
led the jury astray; it had ruled in favor
of the plaintiff on every aspect of the
retaliation claim except the finding of
harm as a result of the city’s conduct,
having been deprived of testimony about
the emotional impact of the conduct on
the plaintiff.)
CALIFORNIA – Opponents of the
California law guaranteeing equal
rights for transgender students will not
give up in their attempt to get a ballot
question for repeal before the voters.
Even though the state has concluded
that insufficient valid signatures were
submitted to put the measure on the
ballot in November, proponents have
filed suit in Sacramento Superior
Court, arguing that signatures were
inappropriately disqualified. Gleason
v. Bowen, No. 34-2014-80001786 (Filed
March 14, 2014). Plaintiffs seek a
writ of mandate compelling the state
to certify the measure for the ballot,
raising questions about the grounds
on which signatures were disqualified.
The plaintiffs contend that the measure
violates the privacy rights of cisgender
students who will be required to share
facilities and compete in athletics
against transgender students.
COLORADO – U.S. District Judge R.
Brooke Jackson granted a motion to
dismiss various constitutional and tort
claims against a Colorado counselor,
who was alleged to have violated
confidentiality rules concerning a
registered sex offender’s HIV status in
C.M. v. Burns, 2014 U.S. Dist. LEXIS
35948 (March 19, 2014). The story
of this case is long and complicated.
The essence of it is that public health
officials received a report that C.M., an
HIV-positive registered sex-offender,
had repeatedly tested positive for
chlamydia and, assuming that he was
engaging in unprotected sex (which he
denied), referred him to a counselor, Ms.
Burns. C.M. claims his doctor advised
that developing antibiotic-resistant
chlamydia infection was a possible sideeffect of the HIV meds he was taking.
C.M. balked at his first counseling
session when Burns demanded that
he execute a confidentiality waiver
giving her permission to speak with his
probation officer and personnel at the
Sex Offender Management Board, and
C.M. claimed Burns was intoxicated at
that meeting, leading him to mistrust her.
Colorado public health officials sought
a Public Health Order against C.M., and
he argued in a hearing that Burns had
“been unethical in attempting to obtain
his signature on a blanket release form.”
C.M. claims that Burns retaliated due to
his statements by sending a fax to the
local probation department claiming
that C.M. was HIV-positive, failed to
disclose his status to sexual partners, and
made false allegations and was engaging
in reckless sexual behavior in violation
of his probation. An attorney at the
probation department advised probation
officers that Burns’ disclosure to them
of C.M.’s HIV-related information
was illegal and they should not try to
compel C.M. to disclose or confirm
the information, but C.M. alleges these
officers violated that instruction. A
judge then issued a Public Health Order
against C.M. concerning his sexual
activities and requiring him to submit to
ten sessions of risk reduction counseling.
C.M. alleges that a public health staffer
present at the hearing then disclosed
C.M.’s confidential medical information
to the Sex Offender Management Board,
which discharged him from participating
in that program, ultimately leading to a
“false arrest” with numerous adverse
collateral consequences, for which C.M.
sues. C.M. sued Burns and various
other individuals under a multitude
of legal claims. The court granted
Burns’ motion to strike scurrilous
allegations about her from C.M.’s
complaint, finding that whether she was
intoxicated was irrelevant to the claims
being asserted against her. The court
also dismissed C.M.’s civil rights claim
against Burns, finding that she was not
a state actor who could be sued under
42 USC 1983, and that the sequence
of events alleged by C.M. did not give
rise to a constitutional claim against
Burns. Judge Jackson lectured C.M.’s
counsel concerning the Amended and
Supplemental Complaint filed with the
court, writing, “One gets the impression
that counsel simply restated in the form
of a complaint a rambling story as told
to her by the client without exercising
sound judgment as to what the legal
claims are, what facts must be pled to
support those claims, and what parts
of the story are better reserved for trial
or culled out altogether,” and said that
“some of the verbiage in this pleading
is offensive and detracts from the
persuasive value of this document.”
The court struck the pleading from the
record, granting leave to file an amended
complaint but directing counsel to “pay
careful attention not only to Rule 8 but
also to Rule 11.”
DISTRICT OF COLUMBIA – The
Justice Department has settled a
long-running
lawsuit
concerning
allegations – now proved – that the
Justice Department during the Bush
Administration had imposed a political
test in selecting from job applicants for
the Department’s prestigious honors
program for young lawyers. Applicants
who were suspected to be out of sync
with the administration’s conservative
ideology were not selected for the
program. As the litigation proceeded,
it was narrowed down to claims by two
plaintiffs, Matthew Faiella and Daniel
Herber. Since Faiella became a public
interest lawyer when he was rejected by
the DOJ program, earning less than he
would have earned at the Department,
he will receive $50,000 compensation
under the settlement. Herber went into
private practice at a salary above what
CIVIL LITIGATION
DOJ was paying, so his compensation is
a token $2,000. Legal Times, March 14.
Faiella was apparently marked by DOJ
officials as a gay rights advocate, and
he worked as a staff attorney on LGBT
issues for the New York Civil Liberties
Union before ultimately becoming a
staff attorney for another department
of the federal government, focusing on
civil rights work.
FLORIDA – There is now a huge body
of federal case law clearly establishing
that LGBT high school students are
entitled under the Equal Access Act to
form and have official recognition for
Gay-Straight Alliances in their schools
as long as the schools are providing
such support for other non-curricular
student clubs. But teenagers are coming
out at younger ages, and the next stage
of litigation – junior high schools and
middle schools – now looms. In Carver
Middle School Gay-Straight Alliance v.
School Board of Lake County, 2014 U.S.
Dist. LEXIS 28907 (M.D. Fla., March
6, 2014), U.S. District Judge William
Terrell Hodges faces the question
whether the Act extends to schools
below the high school level, and whether
a constitutional First Amendment
expressive association claim – apart
from the Act – would receive the
same balancing as a claim concerning
expressive association of high school
students. Students at Carver Middle
School in Lake County whose request
to form such an officially-recognized
club has been denied went to court with
the assistance of the ACLU of Florida
and the ACLU LGBT Rights Project,
asserting statutory and constitutional
claims, and the defendants moved to
dismiss on jurisdictional grounds. While
Judge Hodges was not ready to dismiss
the case, rejecting the school district’s
standing and pleading arguments,
he was also not ready to provide a
preliminary injunction requiring the
school to let the students form their
group, finding that there was some
doubt plaintiffs would prevail on the
merits. The Equal Access Act applies,
by its terms, to “secondary schools”
which are defined as public schools
which provide “secondary education as
determined by state law.” Florida used
to have a statute that defined “secondary
schools” as those covering grades 6-12,
which would encompass middle schools
and junior high schools, but that statute
was repealed in 2013. Various statutes
concerned with other aspects of public
education in Florida point in different
directions, although one definitional
statute says that that the term “school”
means “an organization of students for
instructional purposes in an elementary,
middle or junior high school, secondary
or high school, or other public school
level authorized under rules of the State
Board of Education.” Hodges found that
this definition clearly set up three tiers
of schools, with high schools being the
“secondary schools.” Hodges opined
that “the probable outcome” with respect
to the issue is thus against the plaintiffs.
As to the constitutional claim, Hodges
noted that the issue is “controversial”
and “it is common knowledge that the
debate has often turned violent. It seems
entirely reasonable,” he continued, “that
those in charge of a public middle school
with students twelve to fourteen years of
age would want to distance the school
and its pupils from a debate best left to
more mature educational levels.” Thus,
he concluded that it was “a doubtful
proposition at best” that plaintiffs would
prevail on the merits. Consequently, he
would not issue preliminary injunctive
relief. But the case is not over, since the
complaint was not dismissed.
ILLINOIS – Three lesbians who got into
a confrontation with a drunken police
officer after the June 2007 Chicago
Gay Pride events mainly survived
summary judgment motions by the City
of Chicago, although U.S. District Judge
Elaine E. Bucklo did rule for the city on a
conspiracy claim and granted summary
judgment to some of the individual
police officer defendants. Fuery v.
City of Chicago, 2014 U.S. Dist. LEXIS
39434 (N.D. Ill., March 25, 2014). The
women were driving to a barbecue
after Pride events when their attempt
to pass a very slow-moving car driven
by William Szura, an off-duty Chicago
policeman who had been on duty during
the Pride event, resulted in Szura forcing
them off the road, mouthing off with
homophobic epithets (one of the women
was wearing a Pride t-shirt), provoking
physical confrontation, and threatening
them with arrest. The women filed suit
under 42 U.S.C. sec. 1983 for violation
of civil rights, and also brought state
law tort claims against the city, Szura,
and several other police officers who
arrived at the scene. The March 25
ruling concerned summary judgment
motions by all the defendants except
Szura. The court determined that the
complaint alleged uncontradicted facts
sufficient to find that the City could be
liable for Szura’s alleged misconduct,
even though he was off-duty at the time,
since he pulled his service revolver
on the women, identified himself as
a police officer, and threatened them
with arrest (and other officers on the
scene did briefly handcuff them and
take them in for booking, taking Szura’s
word for what had happened and failing
to investigate the plaintiffs’ side of the
story). The complaint alleges violations
of equal protection, use of excessive
force, false arrest and detention,
violation of the hate crimes statute,
assault and battery, false imprisonment,
malicious prosecution, and seeks to hold
the City liable on an indemnification
claim in their action against the police
officer. From the court’s account of the
complaint, it sounds like a case worth
settling, as a full-blown trial would
likely be a public relations fiasco for the
Chicago Police Department.
KENTUCKY – Here’s an unusual case.
William and Beth Mallard filed a
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chapter 13 Bankruptcy petition. One
of the alleged creditors who filed a
claim against the bankrupt estate was
Wynn-Singer and Associates, a health
care provider. The claim contained
six pages of medical billing records
for services rendered from 2004 to
2010. The unredacted records included
numerical codes for Mr. Mallard’s
medical conditions, including HIV.
Mallard immediately moved to restrict
access to this claim, the court granted
the motion, and soon thereafter WynnSinger filed a redacted version of the
claim that concealed the billing codes.
However, Mallard’s counsel found
that the original unredacted claim
could still be accessed online through
a database used by debtors’ attorneys,
I-Got-Notices. Mallard then filed an
adverse action against Wynn-Singer
in the bankruptcy court, alleging
violations of federal and state law
through the unauthorized disclosure
of his HIV status. In re Mallard, 2014
U.S. Bankr. LEXIS 974 (E.D. Ky.,
March 12, 2014). Wynn-Singer moved
for dismissal or summary judgment of
the various claims asserted by Mallard.
Bankruptcy Judge Tracey N. Wise
granted the motion in part, finding,
among other things, that the allegations
would not support a Kentucky tort
claim of invasion of privacy through
unauthorized publicity to private facts,
because the requirement of “publicity”
was not met by this bankruptcy filing,
as it was not communicated to the
public at large. However, Judge Wise
refused to grant summary judgment
on Mallard’s claim under Kentucky’s
HIV-confidentiality statute. “Kentucky
law prohibits the disclosure of HIV
test results to anyone outside of an
enumerated list of persons and entities
not applicable here,” wrote Judge Wise,
rejecting Wynn-Singer’s contention
that there was no private right of action
under that statute, and that Mallard’s
claim was not preempted by the federal
HIPA statute. Judge Wise noted that
Mallard’s objection to the bankruptcy
claim as time-barred was moot, because
Wynn-Singer had withdrawn its claim
at the summary judgment hearing, and
that Mallard’s attempt to hold WynnSinger in contempt of court foundered
on the lack of a private cause of action
for contempt of court or for violation of
the rules of the bankruptcy court. The
court also held that filing a claim in
bankruptcy is not an activity within the
scope of the Federal Debt Collection
Protection Act, so dismissed Mallard’s
action under that statute.
LOUISIANA
–
Lambda
Legal
announced that BlueCross BlueShield
of Louisiana and two other Louisiana
insurers that had balked at accepting
federally-funded third party premium
payments on behalf of lower-income
residents living with HIV until the
next open-enrollment period begins on
November 15 had backed down in the
face of a federal lawsuit Lambda had
filed, East v. BlueCross BlueShield of
Louisiana, No. 3:14-CV-00115-BAJRLB (M.D. La., filed Feb. 20, 2014).
The insurers capitulated during a
court hearing on Lambda’s request for
preliminary injunctive relief against
insurers who had suddenly dropped
the coverage, leaving numerous HIVpositive individuals without funding
for their continued medication. The
insurers had suddenly announced that
they would no longer accept funds
appropriated under the federal Ryan
White Act to help these individuals
meet their premium expenses. Lambda
Legal attorneys collaborated with pro
bono counsel from Ropes & Gray LLP
and Phelps Dunbar LLP, as well as
AIDSLaw Louisiana.
MINNESOTA – The next time some
legislator claims that laws against
sexual orientation discrimination are
not needed because there is no such
discrimination, they should be made to
read the opinion by Hennepin County
District Judge Thomas M. Sipkins in
Brenny v. The Board of Regents of the
University of Minnesota, No. 27-CV11-1215 (Minn., 4th District Court,
March 18, 2014). Kathryn Brenny,
a professional golfer from North
Carolina, was personally recruited by
John Harris, the Director of Golf for
the University of Minnesota Athletics
Department, to move to Minnesota to
become the head coach for the women’s
varsity golf team. At the time, Harris
did not know that Brenny is a lesbian,
but he received that information through
some gossip by way of the prior coach
and Harris’s son-in-law, who worked
in the Athletics Department, shortly
before Brenny arrived. According to
the court’s detailed findings of fact,
Harris then did everything he could to
make Brenny quit, including stripping
her of all direct coaching responsibility,
assigning her petty clerical tasks,
and seeking to isolate her from any
women in the department. The court
found that Harris concocted false
justifications for being dissatisfied
with Brenny’s performance, and treated
her with humiliating disdain. Brenny
was puzzled by this, since she did not
“come out” in the Department and had
no idea why she was being treated this
way. Finally, she quit and returned to
North Carolina, eventually finding less
lucrative employment. When word got
back to her that Harris knew she was
a lesbian and had made statements
clearly evidencing his intention to
force her resignation because of that,
she filed suit against the University
under Minnesota’s Human Rights
Act, which forbids sexual orientation
discrimination in employment. Judge
Sipkins found that the University,
through Harris (who no longer works
there), had violated the statute, and
awarded Brenny $334,588.00 for wage
loss and lost income, $25,000 for mental
anguish, prejudgment interest from
October 27, 2010 (the date she quit her
job), attorneys’ fees (to be determined),
and costs and disbursements, for a total
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award that is likely to exceed half a
million dollars. Brenny’s counsel are
Donald Chance Mark, Jr. and Peter
Carlson.
MISSISSIPPI – In Hall v. Hall, 2014
Miss. App. LEXIS 167 (Miss. Ct. App.,
March 25, 2014), the court rejected Dana
Hall’s challenge to the Lincoln County
Chancery Court’s award of custody of her
two children to her ex-husband, James
K. Hall III, who has since remarried.
Hall, a lesbian living with a same-sex
partner, had originally been awarded
joint custody and residential custody
at the time of the divorce. Since then,
she had a series of same-sex partners.
James filed a motion to change custody
to him, with visitation for Dana, alleging
a list of “change circumstances” that
would justify the court reopening the
question of custody. One of the items
on the list was Dana’s cohabitation.
Others included poor dental care for
the daughter, improper care related to
a dog bite suffered by the son, Dana’s
abuse of alcohol, educational neglect,
the children’s tattered clothes and poor
hygiene, Dana’s use of tobacco, and
Dana’s “failure to meet the children’s
spiritual needs” (presumably she is
not taking them to church or religious
school). The trial judge focused on the
dental and dog bite issues as providing
sufficient evidence to justify reopening
the custody issue. Then applying the
factors weighed by Mississippi courts
in custody contests between biological
parents, the trial court found that
changing custody to James would be
in the best interest of the children.
Among the factors cited against Dana
was “moral fitness.” Dana’s appeal
contended that judicial disapproval of
her cohabitation with a same-sex partner
had tainted the trial court’s decision, but
the Court of Appeals disagreed, finding
that the trial court had not mentioned
the cohabitation as among reasons
to reopen custody, and pointing out
that Mississippi precedents would not
support such a decision grounded on
cohabitation without evidence of harm
to the children. The court of appeals
never fully came to grips with Dana’s
argument, however, upholding the trial
court’s custody decision on grounds
of deference to the trial judge’s factual
findings. Under Mississippi law, a
chancery court’s decision in such a case
will not be reversed on appeal unless
it was “manifestly wrong or clearly
erroneous,” and the appeals court
“cannot reweigh the evidence and must
defer to the chancellor’s findings of the
facts, so long as they are supported by
substantial evidence.” It is impossible,
based on Judge Fair’s opinion for
the court, to know whether this case
represents a significant miscarriage of
justice, inasmuch as the trial evidence
recited by the court makes it sound like
Dana was not doing a particularly good
job with the children. But the court’s
failure to go into any detail about the
“moral fitness” issue, instead blandly
summarizing the trial court’s holding
without further explanation, certainly
raises red flags, given the history of antigay family law rulings by Mississippi
courts.
MISSOURI – Responding to picketing
of funerals with homophobic signs by
members of the Phelps Family affiliated
with the Westboro Baptist Church,
Missouri enacted a ban on picketing or
other protest activities within 300 feet of
a location where a funeral was being held
from one hour before the ceremony until
one hour after the ceremony. As they
routinely do, the Phelps family brought
suit challenging the constitutionality
of the law, and were rebuffed by U.S.
District Judge Fernando J. Gaitan, Jr.,
who granted summary judgment for
the state in Phelps-Roper v. Koster,
2014 U.S. Dist. LEXIS 30450 (W.D.
Mo., March 10, 2014). Shortly after this
opinion was issued, the Reverend Fred
Phelps, founder and former leader of
the Church, passed away, amidst press
reports that his family members who
remained in control of the Church had
excommunicated him because they
perceived his recent statements as
inadequately strident. Press commentary
about Phelps after his passing contended
that he had ironically advanced the
cause of gay rights, creating sympathy
for gay people through the stridency
and sheer nastiness of his website and
protest activities.
MONTANA – The Montana Supreme
Court ruled unanimously in a dispute
between church groups over the
ownership of property after the antigay group withdrew the church from
affiliation with the Evangelical Lutheran
Church of America (ELCA), a gaysupportive sect. New Hope Lutheran
Ministry v. Faith Lutheran Church of
Great Falls, 2014 MT 69, 2014 Mont.
LEXIS 80 (March 12, 2014). Writing
for the court, Justice Jim Rice relates
that in 2009, “the ELCA adopted a
resolution allowing men and women in
committed, same-sex relationships to
become ordained ministers.” This was
too much for the anti-gay members of
Faith Lutheran Church to abide, and by
secret ballot 71% of the congregation
voted to disaffiliate.
Those who
voted to remain affiliated formed a
new church, New Hope, and affiliated
with ELCA. Under the most recently
adopted constitution of Faith Lutheran
Church, disaffiliation from ELCA
required a 2/3 majority, but a 90% vote
of the congregation would be required
if Faith Lutheran wanted to keep the
property of the church. Arguing that
the overwhelming disaffiliation vote
was sufficient to retain the property,
Faith Lutheran refused to ceded
ownership to New Hope, which filed
this lawsuit, seeking both the property
and the assets of The Foundation for
Endowment of Faith Lutheran Church, a
separate charitable corporation that had
been established by members of Faith
Lutheran to raise money for and fund
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various charitable projects. The trial
court awarded everything to New Hope,
but the Supreme Court’s unanimous
decision reached a split result. The court
held that by virtue of the congregation’s
constitution, Faith Lutheran was not
entitled to keep the property, which
now belonged to the congregants who
opposed disaffiliation and formed New
Hope. However, the Foundation is a
separate entity not subject to the 90%
rule of the Faith Lutheran’s constitution,
so New Hope had no legal basis to claim
its assets.
NEBRASKA – The Nebraska Supreme
Court ruled in C.E. v. Prairie Fields
Family Medicine P.C., 2014 Neb. LEXIS
44, 287 Neb. 667 (March 14, 2014),
that the Dodge County District Court
erred in granting summary judgment
to the defendant on plaintiff’s negligent
and intentional infliction of emotional
distress claims, where plaintiff
presented circumstantial evidence
sufficient to create a disputed issue of
material fact as to whether defendant
disclosed plaintiff’s HIV status without
authorization. The trial court had
dismissed plaintiff’s claim of invasion
of privacy through unauthorized
disclosure of private facts, finding the
claim was asserted after the statute of
limitations had expired. Plaintiff had no
direct evidence as to who at defendant’s
establishment leaked the information,
but essentially presented process-ofelimination evidence suggesting that
such a leak was the most likely source
of the information getting out and
spreading in the community. Plaintiff
had submitted to blood testing to
purchase a life insurance policy. The
insurer used a protocol under which
the laboratory that performed the
test would send the result to another
laboratory, which would then send it
to the applicant’s physician. When
plaintiff was called in to get her result,
she was informed that it was probably a
false positive and to submit to another
test. She says she told nobody about the
test result. The next day, a friend called
to ask how she was because she had
heard from another friend that plaintiff
had “full blown-out AIDS.” Plaintiff
ascertained that this had become the
talk of her small town in Nebraska,
and after becoming convinced that the
information came from her doctor’s
office, filed her lawsuit. A long period
of detective work delayed filing suit
until the statute of limitations had
passed on the invasion of privacy claim,
however, so only the emotional distress
claims will be revived by this decision.
NEVADA – Following a wellestablished precedent in the 9th Circuit,
U.S. District Judge Miranda M. Du
granted a motion to dismiss a pro
se action brought by a father against
a school administrator and other
defendants in connection with alleged
discrimination against his bisexual son.
In common with some other circuits, the
9th Circuit will not entertain such pro
se cases, on the theory that the child
in whose name the litigation is being
brought should have competent counsel
to frame an appropriate complaint
and present the case. Judge Du gave
plaintiff Robert Buran sixty days to
make such arrangements on behalf of
his son in Buran v. Riggs, 2014 U.S.
Dist. LEXIS 32161 (D. Nev., March 11,
2014). Otherwise, a new case could
be filed on his own behalf by EB once
he becomes an emancipated minor or
reaches age 18. Wrote the judge, “Mr.
Buran argues that Johns [the relevant
9th Circuit precedent] should not apply
in this case because Mr. Buran cannot
afford to hire a licensed attorney. The
Court is sympathetic to Mr. Buran’s
financial situation. 42 U.S.C. sec. 1988
authorizes district courts to award
reasonable attorneys’ fees to prevailing
parties in certain types of civil rights
cases, including actions involving claims
under Sec. 1983 and Title IX. Nonprofit legal organizations and attorneys
may therefore be willing to represent
litigants advancing Sec. 1983 and Title
IX cases without requiring upfront
payment of fees. The Court mentions
these facts not to provide Mr. Buran
with any particular advice or to endorse
these alternatives, but to demonstrate
that even parents who lack financial
means may seek private enforcement of
alleged violations of federal law. As Mr.
Buran may not bring claims on behalf
of EB without retaining a lawyer, all
claims asserted by EB are dismissed.”
The court also concluded that Mr.
Buran had failed to state a claim under
Sec. 1983 and Title IX as an aggrieved
party, because the “extreme emotional
stress” and “debilitating depression,
humiliation and despair” he claimed to
have suffered due to the treatment of his
son and his own interactions with school
administrators about it could not ground
his own claims under these statutes.
“There are no factual allegations to
support a claim that Mr. Buran was
discriminated against on the basis of his
sexual orientation or gender in violation
of the Equal Protection Clause, and
there are no factual allegations to
support a claim that Mr. Buran’s speech
was censored or that he was retaliated
against based on his exercise of free
speech under the First Amendment,”
she wrote. Buran’s allegations were
really more appropriate for state tort
claims, but as the court dismissed all
federal statutory claims, there was no
supplemental jurisdiction to address the
state law claims.
NEW JERSEY – The New Jersey Law
Journal (March 19) reported that
Superior Court Judge Yolanda Ciccone
has ruled in V.B. v. Flemington-Raritan
Regional Board of Education that a
school district being sued for bullying
of a student may bring in as defendants
the students who were identified by the
plaintiff as his harassers. According
to the news report, the 17-year-old
plaintiff claimed that school staff had
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failed to deal with his complaints after
he was taunted by fellow students for
being overweight and for his “perceived
homosexuality.” The complaint did not
name the harassers, but identified them
by initials in a detailed recitation of
incidents. The school districts asserted
a right of contribution in their thirdparty complaints, contending that if
the schools are held liable, they should
be able to seek compensation from
the parents of the harassing students.
Lawyers for the parents sought to get
the third-party complaints dismissed,
asserting that the parents had not
committed any common law tort. The
school districts ground their claims on
the state’s Joint Tortfeasor Contribution
Law, and denied the parents’ claims of
immunity from suit. According to the
news report, Judge Ciccone said that
“principles of joint liability allow the
school districts to seek contribution
from those it failed to supervise when
they are responsible for the same harm.”
She ruled that it was premature to
dismiss the third party claims before
discovery had taken place.
NEW YORK – The Court of Appeals,
the state’s highest court, has affirmed
the Appellate Division’s ruling in In
re Estate of Ranftle, 108 A.D.3d 437,
969 N.Y.S.2d 48 (N.Y. App. Div., 1st
Dept. 2013), in which the intermediate
appellate court upheld the New York
County Surrogate Court’s determination
that the decedent died a resident of
New York State, thus he died married
to his same-sex spouse for purposes of
settling the estate. In the Matter of H.
Kenneth Ranftle, Deceased, 2014 N.Y.
LEXIS 571, 2014 NY Slip Op 2102
(March 27, 2014). Surviving relatives
sought to contest the validity of the
marriage for estate administration
purposes, contending that the decedent
was a resident of Florida – which does
not recognize same-sex marriages –
at his death. One surviving relative,
determined to cut out the surviving
spouse, sought to take the matter up
to the highest court, but the court said
in a brief memorandum: “certified
question not answered upon the ground
that it is unnecessary. The affirmed
findings of fact regarding decedent’s
change of domicile, made under the
proper evidentiary standard, have
support in the record and are beyond
our further review.” Six members of the
court joined in the decision, the most
recently appointed member not having
participated in the case. Erica Bell
represented the estate in the Surrogate’s
Court, and was joined by Lambda
Legal’s Susan Sommer in the appellate
phase of the case. In retrospect, the
appellant’s attempt to get the Court of
Appeals to reopen a factual finding
made upon a full hearing record that
had been affirmed by the Appellate
Division appeared quite futile.
NEW YORK – The N.Y. Appellate
Division, 1st Department, in Manhattan
upheld an award of $1.6 million
damages on a jury verdict rendered
under the New York City Human
Rights Law to Mirella Salemi on her
discrimination claim against Gloria’s
Tribeca, Inc. and its owner, Edward
Globokar. Salemi v. Gloria’s Tribeca
Inc., 2014 WL 1057328, 2015 N.Y. Slip
Op. 01838 (March 20, 2014). Salemi,
identified in various media sources
but not in the court’s opinion as a
lesbian, worked as a chef in defendant’s
restaurant. She charged the employer
with discrimination based on religion
and sexual orientation. She presented
evidence at trial that the employer held
weekly prayer meetings at the restaurant
that were viewed as mandatory for
staff, and that the employer repeatedly
stated that homosexuality is “a sin” and
that “gay people” were “going to hell.”
She alleged that she was generally
subjected to “an incessant barrage of
offensive anti-homosexual invective,”
according to the court’s per curiam
opinion. The court wrote, “Additional
evidence demonstrated that as a result of
Globokar’s improper conduct, plaintiff
was retaliated against for objecting to
his offensive comments, choosing not
to attend workplace prayer meetings,
and refusing to fire another employee
because of his sexual orientation, and
was constructively discharged.” The
court rejected defendant’s argument that
the trial judge should have instructed the
jury to use the “severe and pervasive”
standard that is used for hostile
environment cases under Title VII, and
also rejected an argument that the trial
judge, Justice Carol E. Huff, should
have charged the jury on a portion of the
Human Rights Law forbidding religious
discrimination, finding that the purpose
of this section was to protect “victims
of employment discrimination, not
perpetrators of discrimination.” The
trial court had instructed the jury
that Globokar had “a right to express
his religious beliefs and practice his
religion, provided that he does not
discriminate against his employees
based on religion or sexual orientation.”
The court found the amount of damages
to be within the range of what has
been awarded in similar cases and
that the punitive damage portion of
the award -- $1.2 million – was not
excessive. The balance of the award,
$400,000, was compensatory damages
for the constructive discharge and
accompanying emotional distress.
Salemi is represented by Derek T.
Smith Law Group, William G. Kaupp of
counsel.
NEW YORK – U.S. District Judge Harold
Baer, Jr., granted summary judgment to
the defendant in Roggenbach v. Touro
College of Osteopathic Medicine, 2014
U.S. Dist. LEXIS 33704 (S.D.N.Y.,
March 13, 2014), in which a gay
HIV+ man alleged discrimination on
various federal and state law theories
in connection with his dismissal as
a student at the Touro College of
Osteopathic Medicine. Judge Baer found
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that the undisputed material facts failed
to support a claim of discrimination
in light of the plaintiff’s record and
the timing of events. Having found
no basis for the federal claims, most
significantly under the Americans with
Disabilities Act, Judge Baer declined to
rule on state and city law claims. In his
opinion, Baer rejected the defendant’s
argument that because the plaintiff’s
HIV-infection was asymptomatic, he
did not have a disability and thus could
not claim protection under the ADA.
“Here, Plaintiff has not attempted to
demonstrate that his HIV-positive status
has inhibited a major life activity,”
wrote Baer. “However, this omission is
not fatal to Plaintiff’s claim. Although
he may not show symptoms because
his HIV is ‘episodic or in remission,’
it may nevertheless ‘limit a major
life activity when active.’ Thus, a
rational fact finder could conclude
that Plaintiff’s HIV-positive status is
a disability within the meaning of the
statute.” This demonstrates how 2008
amendments to the ADA helped to
clarify the statute’s applicability in HIV
discrimination cases. However, in this
case the defendant did not know that the
plaintiff was HIV+ when it instituted
proceedings against him, Judge Baer
found, because that process started
days before the defendant received
a letter from the plaintiff’s landlord
that mentioned that his rent was being
assisted by “an agency for disabled
HIV+ men and women.” He found that
similar timing issues in the narrative
of events precluded a retaliation claim,
as the plaintiff had filed his initial
discrimination claims with several
agencies long after the school had taken
action against him.
NEW YORK – In Prinzivalli v. Farley,
2014 N.Y. Misc. LEXIS 1140, 2014 N.Y.
Slip Op 30658(U) (Sup. Ct., N.Y. Co.,
March 18, 2014), Supreme Court Justice
Joan A. Madden ruled on discovery
issues in a pending legal challenge
to New York City officials’ denial of
the plaintiffs’ applications to amend
their birth certificates to change the
designated sex. This long-running case
concerns the city’s policy, reconsidered
by city officials in 2006, not to make such
birth certificate changes in transgender
cases without proof of surgical
alteration. Justice Madden had issued
a decision on July 23, 2012, requiring
respondents to produce documents and
information in response to plaintiffs’
discovery requests, and such response
was submitted on February 28, 2013,
but plaintiffs were dissatisfied due to
various omissions and redactions from
the materials requested. The city was
claiming privilege with regard to the
redacted items, and Justice Madden
determined that in camera inspection
by the court would be necessary to
determine various privilege claims. The
city argued the importance of shielding
its internal policy deliberations, in
order that participants be able to speak
freely in such internal debates. In this
opinion the judge also ruled on several
additional discovery requests by the
plaintiffs, granting some and denying
others, and also addressed a request
to depose the city’s registrar of vital
records, which was granted.
OKLAHOMA – A trial judge who does
not believe that gender transition therapy
should result in a change from a “male”
to a “female” name was reversed for the
second time in such a case, reported the
Durant Daily Democrat (March 22,
2014). The Oklahoma Court of Civil
Appeals ruled that Oklahoma County
District Judge Bill Graves should have
granted James Dean Ingram’s petition
for a legal change of name to Angela
Renee Ingram. Graves had ruled in
November 2012, shortly before the
appellate court had reversed his prior
refusal to grant a name change from
Steven Charles Harvey to Christie Ann
Harvey. The newspaper reported that
in both cases Graves had cited a Bible
passage from Genesis in support of his
ruling, “So God created man in his own
image, in the image of God created
he him; male and female created he
them.” Graves ruled in the Ingram
case: “The DNA code shows God meant
for them to stay male and female,” and
that because gender transition therapy
did not change a person’s underlying
DNA, the court should not approve a
name change. In the earlier ruling, In
re Harvey, 293 P.3d 224 (Ok. Ct. Civ.
App. 2012), the court had stated: “The
law does not require males be given
traditionally male names, or females
traditionally female names, by their
parents at birth. Additionally, there are
numerous gender-androgynous names.
The relevant issue in a name change
proceeding is not whether the applicant’s
DNA corresponds with the traditionally
male or female name preferred by
the applicant. The statute does not
change the sex of the applicant, only
the applicant’s name. The trial court’s
denial was not based on a finding that
a material allegation in the petition was
untrue. Therefore, the relevant issues
is whether the applicant is seeking a
name change for an illegal or fraudulent
purpose.” The court found an abuse of
discretion in the Harvey case, and ruled
similarly on March 21 in the Ingram
case. The newspaper reported Graves’
response that he would implement the
ruling of the court of appeals. The
ACLU of Oklahoma represents Ingram
in the case.
PENNSYLVANIA
–
Philadelphia
Common Pleas Judge John W. Herron
has denied a summary judgment motion
by Joseph Hallman and granted a
summary judgment motion by the Estate
of Stephen Gallagher in a dispute over
the proceeds of a life insurance policy
underwritten by Aetna and provided
by Gallagher’s former employer, the
University of Pennsylvania, finding that
Gallagher had not designated his former
same-sex partner as a beneficiary. Since
CIVIL / CRIMINAL LITIGATION
Gallagher died unmarried, the proceeds
of the policy go to his parents. Hallman
and Gallagher lived together as partners
from 2005 until 2008, but had ceased to
be partners prior to Gallagher’s death.
Screen shots of computer records kept
by Aetna and the University had listed
Hallman as the beneficiary, but there
was evidence that his name had been
inserted by default when Gallagher
listed him with the University as his
same-sex partner, in line with the
University’s provisions of benefits to
same-sex partners of its employees.
Judge Herron found there was no clear
evidence that Gallagher had intended
to designate him as a beneficiary of
his employer-provided life insurance
policy. Estate of Stephen Gallagher
(Pa., Philadelphia Court of Common
Pleas). Legal Intelligencer, March 10.
SOUTH CAROLINA – An investigator
employed by the Equal Employment
Opportunity Commission suffered
dismissal of his complaint that the
EEOC had violated his right to free
exercise of religion by requiring him to
investigate claims of sexual orientation
discrimination. Somers v. EEOC, 2014
U.S. Dist. LEXIS 40050 (D.S.C., March
25, 2014). U.S. District Judge Mary
G. Lewis related, “In his complaint,
Plaintiff alleges that the EEOC is
forcing its investigators, including
Plaintiff, to interpret and enforce the
law as if it includes sexual orientation
discrimination
as
an
unlawful
employment practice. Plaintiff further
alleges that he holds sincere religious
beliefs that homosexual behavior is
immoral and, that he notified the EEOC
of his religious objection to working
on cases based on allegations of sexual
orientation discrimination. Plaintiff
requested a religious accommodation
that would have excused him from
working on these cases but the
EEOC denied Plaintiff’s requested
accommodation.” A Magistrate Judge
recommended dismissing the case,
pointing out that the plaintiff’s claims
would arise, if at all, under Title VII,
and thus could not be brought in a
direct federal suit against his agency
employer. Furthermore, the plaintiff
was only recently assigned his first case
involving such a claim, and the agency
had not yet responded to his request
for accommodation (i.e., allowing
him to decline to investigate the case).
Ultimately, however, this case turned
on Congress’s determination, as the
statutes are construed by the federal
courts, that federal employees with
discrimination claims must exhaust
administrative remedies before they can
sue in federal court, the same as private
sector employees, who are required
to file administrative discrimination
charges and received right to sue letters
before they can proceed to court on
their discrimination claims.
WISCONSIN – The myth that federal
anti-discrimination
law
includes
sexual orientation is well established
among the general public, leading to
inappropriate federal court filings. For
example, in Hamzah v. Woodmans Food
Market, Inc., 2014 U.S. Dist. LEXIS
38183 (W.D. Wis., March 24, 2014), the
plaintiff, proceeding pro se, alleged that
he suffered employment discrimination
on account of his sexual orientation
(i.e., heterosexual) in violation of Title
VII. Hamzah also alleged retaliation
for filing a discrimination claim. He
alleged that a Woodman’s employee told
him that “because he was heterosexual,
he would not be promoted and would
ultimately be terminated, because
‘this is a gay thing’ and ‘non-gays or
–bisexuals aren’t welcome for long
here at Woodman’s West.” Hamzah
claimed that the company routinely
denied employment to heterosexuals
and harasses them if they are hired to
get them to quit. He also alleged that he
was warned several times that he would
lose his job if he kept filing written
complaints about being harassed
by co-workers. He also alleged age
discrimination. District Judge William
M. Conley, explaining that sexual
orientation claims are not actionable
under Title VII, dismissed that claim
with prejudice. Noting pleading defects,
he dismissed the remaining claims as
well, but without prejudice, and advised
Hamzah to get a lawyer to bring a new
claim on his behalf, giving him until
April 14 to do so or else suffer dismissal
with prejudice. Conley opined that
because of the attorney fee provisions in
federal civil rights law, somebody with
a valid discrimination claim should be
able to find a lawyer to represent him.
CRIMINAL LITIGATION NOTES
LOUISIANA – The 1st Circuit Court
of Appeal of Louisiana concluded that
a trial court had correctly excluded
evidence that the defendant’s ex-wife
had “gender identity issues” because
the prejudice the issue would cause
would outweigh its potential relevance
in his criminal case. State v. O’Dowd,
2014 La. App. Unpub. LEXIS 175
(March 24, 2014). John O’Dowd was
charged with two counts of aggravated
incest, based on allegations that he had
engaged in improper sexual conduct
with his two minor daughters. Part
of O’Dowd’s defense was that his exwife, the children’s mother, had gotten
the children to make these allegations
against him in an attempt to regain
custody of the children, which had
been given to him in part because of
her “gender identity issues.” The trial
court had ruled that “the prejudicial
nature of the defendant’s ex-wife’s
gender identification issues was greatly
outweighed by any probative value.”
The trial court “pointed out that the
defense could argue the defendant’s exwife manipulated the children, but did
not feel that it was necessary to allow
testimony regarding the transgender
issue because it was such a ‘hot-button’
CRIMINAL LITIGATION
issue. The court also opined that if that
information were presented to the jury,
‘that’s the only thing they hear. They
don’t hear anything else at that point.
It’s so prejudicial, and it’s not probative
of anything.’” The defendant had filed
writ applications trying to get this ruling
reversed before the trial went forward,
but unsuccessfully. The court of appeal
related that at trial defendant’s counsel
was able to question the ex-wife about
the circumstances of their divorce and
the custody dispute. “Defense counsel’s
examination of the defendant’s ex-wife
established her strong desire to be
awarded custody of her children as well
as the potential that she manipulated
the children in order to get custody,”
wrote Judge Theriot for the court. “The
district court acted within its discretion
when it concluded that the probative
value of testimony that the defendant
sought to present regarding his ex-wife’s
transgender issue was outweighed by
the risk of diverting the jury’s attention
and confusing the issues. Accordingly,
we do not find a substantial denial of the
defendant’s right to present a defense.”
O’Dowd was convicted and sentenced
to 25 years at hard labor without benefit
of parole on both counts, to be served
concurrently. The court also rejected
other challenges by O’Dowd to the
trial procedures, and affirmed the
convictions and sentences.
OHIO – The 9th District Court of
Appeals of Ohio upheld the conviction
of Kelley Bean, an HIV-positive
woman, on two violations of an Ohio
statute that requires HIV-positive
individuals to disclose their infection
before engaging in sexual conduct with
another person. State v. Bean, 2014Ohio-908, 2014 Ohio App. LEXIS 877
(March 12, 2014). Bean challenged
the sufficiency of evidence presented
at trial. In both cases, the victims,
men with whom Bean had romantic
relationships, testified that Bean had not
disclosed her HIV-status to them before
they engaged in unprotected sex with
her. The first man, T.D., was engaged
to marry Bean, but the marriage plans
were shelved when T.D. fell in love with
another woman. T.D. subsequently
learned that he was HIV-positive, and
suspected that Bean had infected him
after receiving some emails from her
six weeks after his diagnosis, in which
she implied that she had infected him
and his new girlfriend. The other man,
R.M., met Bean at a bus terminal more
than a year after her breakup with
T.D. He testified that she told him that
she was “disease free,” after which
their relationship became physical.
Subsequently, Bean was hospitalized for
a medical condition. R.M. testified that
he overheard Bean tell a doctor that she
was taking a medication to prevent HIV.
R.M. was familiar with that medication
from his own past work in a hospital,
and questioned Bean several times, but
she reiterated that she was not infected,
and R.M. had sex with her again after
her discharge from the hospital. Bean
was later serving a prison sentence and,
in a letter from jail, wrote R.M. “If you
want to know the truth on what’s going
on, yes, I am HIV positive.” Bean was
charged with felonious assault and
domestic violence, but the domestic
violence charge was dropped from the
case and she was convicted on both
felonious assault counts under the Ohio
disclosure statute. The court observed
that it was not necessary for the state
to prove that Bean had infected either
man, since the offence under the statute
consisted of engaging in sexual conduct
without disclosing the fact of HIV
infection. The opinion for the Court
of Appeals by Judge Jennifer Hensal
contains no discussion about whether
an HIV-infected woman can transmit
the virus to a man through heterosexual
oral or vaginal intercourse, the types
of conduct involved in this case. No
proof was offered that T.D. was infected
with the same strain of HIV that infects
Bean. The court of appeals affirmed the
sentence of eight years imprisonment.
SOUTH CAROLINA – Crystal Nicole
Thomas, convicted of second-degree
assault and battery, bit a police officer
and then said to him that she had AIDS.
The trial court directed a verdict against
her. On appeal, she contended that the
trial court erred in admitting the police
officer’s testimony about what she said
after she bit him. The Court of Appeals
responded by citing a string of cases,
supporting the conclusion that such
evidence would be admissible on the
issue of intent, and that the probative
evidence could outweigh the danger of
unfair prejudice. State v. Thomas, 2014
S.C. App. Unpub. LEXIS 102 (March 5,
2014).
TEXAS – The Texas 10th District
Court of Appeals (Waco) affirmed the
conviction and 70 year prison sentence
of Cody Jay Riley, an HIV-positive man
who had sex twice with a 15-year-old
boy whose Craigslist advertisement
Riley had responded to. Riley v. State,
2014 Tex. App. LXIS 2830 (March 13,
2014). Although the victim, referred to
as Jared Graham (a pseudonym) in the
opinion for the court by Judge Rex D.
Davis, stated in the advertisement that
he was 18, Riley subsequently learned
from Graham’s facebook page that he
was actually fifteen and confronted
him about the age discrepancy, but
eventually agreed to Graham’s urging
that they meet. Twice Graham snuck
out of his house at night to meet Riley,
once to have sex in a nearby park, the
second time at Riley’s house. Riley
never disclosed his HIV-status to the
boy and engaged in unprotected oral
and anal sex with him. The boy’s
father discovered what was going on
and took him to the police. A search
of Riley’s house turned up HIV-related
medications, and forensic examination
of Riley’s computer confirmed the
communications via email between
Riley and Graham, although Graham
had trouble identifying Riley from a
“photo lineup.” Graham did identify
CRIMINAL / PRISONER LITIGATION
Riley’s house and car, however. Graham
testified that Riley never disclosed his
HIV status, and that Graham would not
have had sex with Riley had he known
that Riley was infected. Graham did
testify that the sex was consensual
and that he was the instigator of the
relationship.
The court of appeals
rejected Riley’s contention that the
evidence was insufficient to support the
conviction of aggravated sexual assault
of a child with a deadly weapon (body
fluids of HIV-infected defendant), since
it relied heavily on the testimony of a
minor victim, but the court concluded:
“Viewing all the evidence in the light
most favorable to the verdict, we
conclude that a rational trier of fact
could have found that Riley committed
the offenses of aggravated sexual assault
beyond a reasonable doubt.”
PRISONER LITIGATION NOTES
with interests of self-presentation
for transgender inmates. The lower
court decision – Holt v. Hobbs, 509
Fed. App’x 561 (8th Cir. 2013) -gave balancing weight to the kind of
assertions corrections officials raise
against transgender inmates who wish
to wear attire of their identified gender;
to receive hormones that change gender
appearance, or increase or decrease
body hair; or to have visible surgical
changes. For example, the court wrote
that “affording special privileges to an
individual inmate could result in his
being targeted by other inmates” and
said that “the grooming policy was
necessary to further [Arkansas’] interest
in prison security.” Given the imposition
of religious Free Exercise claims in
opposition to LGBT civil rights in the
courtroom and the legislature, and the
dearth of Supreme Court analysis of the
problems of transgender prisoners, this
case is worth following for its possible
implications. William J. Rold
U.S. SUPREME COURT – On March
3, 2014, the Supreme Court granted
certiorari in Holt v. Hobbs, No. 13-6827,
on the question of whether Arkansas
prison regulations, which prohibit an
inmate from growing a half-inch beard,
violate his rights under the Religious
Land Use and Institutionalized Persons
Act, 42 U.S.C. § 2000cc, et seq. The
unpublished per curiam opinion of
the Eighth Circuit affirmed dismissal
of Holt’s claim after an evidentiary
hearing, but on November 14, 2013, the
Supreme Court restrained Arkansas
from “enforcing [its] grooming policy
to the extent that it prohibits [Holt]
from growing a one-half-inch beard in
accordance with his religious beliefs.”
The application was made to Justice
Samuel Alito, as circuit justice for the
Eighth Circuit, and presented by him to
the full court. It remains in effect until
judgment on the case now under review.
Although Holt wanted a beard for
religious (Muslim) reasons, grooming
standards for inmates frequently clash
11TH CIRCUIT COURT OF APPEALS
– An HIV+ inmate’s effort to compel
a jail physician to continue his high
calorie diet failed in Carter v. Broward
County Sheriff’s Dep’t Med. Dep’t,
2014 U.S. App. LEXIS 4362 (11th Cir.
, March 10, 2014), which affirmed (per
curiam) the United States District Court
for the Southern District of Florida’s
dismissal of James Alexander Carter’s
civil rights case under 42 U.S.C. §
1983. Carter sued the County, the jail’s
medical director (Rosemary Jackson),
and Armor Correctional Health
Services, Inc. (the contractual provider
of medical care at the jail). His pro se
complaint alleged that the continuation
of his high-calorie/high-protein diet was
medically necessary for his HIV, and
that Jackson was deliberately indifferent
by discontinuing it. The court found in
the absence of contrary evidence from
Carter (and with the concurrence of
an expert who reviewed his chart) that
Dr. Jackson acted within her medical
judgment in stopping the special diet
based on her monitoring of his weight
and lab values. Carter’s claim that he
suffered wasting syndrome as a result
was belied by the record, which showed
he gained 25 pounds while in the
county jail. Carter’s claims amount “at
most to a difference of opinion,” said
the court of appeals, which does not
give rise to a constitutional violation
and is insufficient to survive summary
judgment under Estelle v. Gamble, 429
U.S. 97, 104-05 (1976). Although the
plaintiff was unable to prove his case
without expert testimony, it was not an
abuse of discretion for the district court
to decline to appoint counsel, said the
court of appeals. William J. Rold
MICHIGAN – U. S. District Judge
R. Allan Edgar found that there is no
constitutional liberty interest to protect
against an inmate’s being falsely labeled
a “homosexual predator” by corrections
officials in White v. Renico, 2014 U.S.
Dist. LEXIS 27024 (W.D. Mich., March
4, 2014). Pro se plaintiff Kala White, a
maximum security prisoner, sued seven
defendants, including two wardens and
three housing supervisors, in a futile
attempt to expunge such designation
from his prison records. White was
charged with threatening the life of
his cellmate if he did not perform oral
sex – a ticket knowingly fabricated
by defendants, according to White
– as a result of which he received a
“homosexual predator” designation. In
the ensuing years, the designation was
removed and reinstated several times.
By 2012, under a new policy, White
was no longer considered a “predator”
but “merely” “sexually aggressive,”
according to his records. White sued
for expungement of all misconduct
and “all labels and sanctions” from his
records, plus damages. Judge Edgar
quoted Sandin v. Conner, 515 U.S. 472,
486 (1995), in finding that an inmate
“does not have a protected liberty
interest in the procedures affecting his
PRISONER / LEGISLATIVE
classification and security because the
resulting restraint does not impose an
‘atypical and significant hardship on
the inmate in relation to the ordinary
incidents of prison life.’” In particular,
the U. S. Court of Appeals for the
Sixth Circuit has “specifically held
that a prisoner does not have a liberty
interest arising from designation as a
homosexual predator.” See Washington
v. Wiest, 1998 WL 466555, at * 2 (6th
Cir. July 31, 1998); O’Quinn v. Brown,
1993 WL 80292, at * 1 (6th Cir. Mar.
22, 1993). Judge Edgar also found that
any appeal would be “frivolous” under
28 U.S.C. § 1915(a)(3), meaning that
an appeal cannot be taken in forma
pauperis. William J. Rold
TEXAS – A Texas prisoner with a preDSM-V diagnosis of “Gender Identity
Disorder” [“GID”], and who was missing
most of his teeth from an assault prior to
incarceration, did not state valid claims
against 17 of the 19 defendants sued
for failure to protect him from harm
and for deliberate indifference to his
medical needs in Copeland v. Furrell,
2014 U.S. Dist. LEXIS 25805 (February
28, 2014). U. S. Magistrate Judge Jason
B. Libby’s exhaustive recitation of the
facts and application of the law to each
defendant are beyond the scope of this
case note. Except for two defendants,
who interfered with medical orders and
appointments, Judge Libby dismissed all
claims. Defendants housed Copeland
in administrative segregation instead of
his requested less restrictive protective
custody in part for his protection
(“slightly feminine affect” and
conviction of indecency with a child)
and in part because of his behavior
(setting fires and hiding contraband).
Judge Libby found that Copeland failed
to show that the defendants “knew of
and disregarded an excessive risk to [his]
safety,” as required for liability under
Farmer v. Brennan, 511 U.S. 825, 833
and 842-845 (1994). Copeland had no
right to a particular classification (or his
preferred housing); the decision to deny
protective custody was a matter “better
left to the discretion of prison officials”;
and he had not been assaulted since he
arrived on the unit. Judge Libby found
that medical defendants had not denied
Copeland evaluation for his GID or other
medical problems; and, in light of plans
to return him for further evaluation,
he dismissed claims against mental
health defendants without prejudice. A
defendant dentist ordered dentures, but
this was blocked by Medical Practice
Manager Drew Salinsky, so Dr. Ferrell
ordered a “blended diet.” The officer in
charge of the segregation unit (defendant
Captain Juan Salazar) did not allow
such meal trays to enter the unit, and
Copeland “gave up on his efforts and
accepted a regular meal.” Due to “staff
shortages,” Copeland frequently missed
health appointments until he filed suit,
including 17 appointments at the dental
clinic. Although Judge Libby dismissed
the case against the dentist, Copeland
stated claims against Captain Salazar
and Manager Salinsky. Copeland had
a medical order for a soft diet, and
Captain Salazar “ignored or refused to
follow that order…, causing him pain
at every meal.” As to Salinsky, not
only did he interfere with the order
for dentures, but it was also his “job
to ensure that inmates get to their
appointments and receive appropriate
treatment.” The court also found that
“it appears as if [Salinsky] would be
the party responsible for ensuring that
Plaintiff receive a mechanical soft
diet.” [Note: administrative segregation
inmates normally require correction
officer escort and cannot move about
the institution with a “pass.” Thus, a
failure of an inmate needing escort to
appear for health appointments could
reasonably be attributed to management
failures by the security captain and the
health manager. This is an example
of potential civil rights liability
of supervisory staff for deliberate
indifference to serious health care
needs.] William J. Rold
LEGISLATIVE
NOTES
&
ADMINISTRATIVE
FEDERAL – Almost all Senate
Democrats and about three-quarters
of House Democrats joined in a
letter to President Barack Obama
calling on him to sign an executive
order that would ban discrimination
by federal contractors because of
sexual orientation or gender identity,
according to news reports late in
March. Such an Order was part of
Obama’s election platform in 2008,
but it has become subsumed by the
administration’s focus on passing the
Employment Non-Discrimination Act
(ENDA). ENDA survived a filibuster
attempt and was passed by the
Democratic-controlled Senate last year,
but the Republican leadership of the
House has opposed holding hearings
or bring it to a vote. When questioned
about an executive order, White House
spokespersons just repeat the same
statement over and over – the President
is committed to passing ENDA, which
would cover the entire private sector to
the same extent as other federal antidiscrimination laws, thus protecting
employees of federal contractors as
well. However, passage of ENDA in
the present Congress appears virtually
impossible. Although there are some
Republican co-sponsors in the House,
and a few House Republicans who tell
lobbyists that they won’t co-sponsor
but would vote for the measure if it
was brought up for a vote before the
full House, there are doubts that the
necessary votes could be obtained for a
discharge petition that would bring the
Senate version of the bill to the House
floor, by-passing House committees
and the leadership. At the end of
March, there were some hints that the
administration would not be opposed
to a discharge petition effort, although
the President was not speaking about
it publicly.
LEGISLATIVE
ARIZONA – The Tucson Unified School
District’s governing board voted 4-1 on
March 25 to revise the district’s nondiscrimination policy to add gender
identity or expression to the list of
prohibited grounds of discrimination,
which already includes sexual
orientation. Responding to parental
concerns about restroom issues, the
district held a gender-identity workshop
for parents featuring a “national expert”
to explore the issues, and undertook to
construct partitions around the urinals
in the boys’ restrooms to ensure privacy
for all students – a civilized step that
should be undertaken by any entity
constructing public restrooms. Arizona
Daily Star, March 28.
IDAHO – The Affirmative Action
Committee at Idaho State University
has added “gender identity” to the
university’s anti-discrimination policy,
which already covered “sexual
orientation,” the Idaho State Journal
reported on March 8.
IOWA – The Iowa Senate voted 48-0 on
February 27 to approve a criminal law
revision which would reshape provisions
concerning criminal transmission of
infectious agents, a subject that came
to the fore in Lambda Legal’s appeal
of a draconian prison sentence imposed
on Nick Rhoades, a gay man who did
not transmit HIV to his sexual partner,
used a condom, but was prosecuted
anyway because he did not disclose
his HIV status to his partner. The bill
fine tunes the penalty system to reflect
the seriousness of the offense, unlike
the existing blunt provisions, and also
recognizes a defense based on following
a treatment regimen and physicians’
advice, according to a March 3 report
in Legal Monitor Worldwide, 2014
WLNR 5779473. The measure received
bipartisan support in the Senate
Judiciary Committee. According to
the bill’s sponsor, Sen. Robert Hogg
(D-Dist. 19), “Right now, we have this
outdated, draconian law that says if you
engage in conduct that has the potential
of transmitting HIV, you are facing
a 25-year sentence, a class-B felony,
regardless of whether you have taken
action to prevent the transmission.
We are going to update it.” The bill
“provides for varying penalties from
a serious misdemeanor to a class-B
felony, depending on the intent of the
accused and exposure of a virus to an
uninfected person,” according to the
news report. Evidence was presented
at Rhoades’ trial that there was almost
no chance of his transmitting the virus
due to the medication he was taking
and his undetectable viral load, but the
trial court imposed a 25-year-sentence,
feeling compelled to do so by the
statute. This was later reduced as a
result of post-trial motions.
MARYLAND – The state’s Senate
voted 32-15 to approve a bill that
would add “gender identity or
expression” to the list of prohibited
grounds of discrimination in the
state’s law banning discrimination in
employment, housing, credit and public
accommodations. The measure had
been pending in the Senate for eight
years, and was approved on a “mostly
party-line vote” according to a March
4 report in Poliglot.com. About half
of the state’s population resides in the
three counties (Baltimore, Howard and
Montgomery) and one city (Baltimore)
that already ban such discrimination
under local law. Concerns raised
by Republican opponents about the
“bathroom issue” led to adoption of a
provision stating that a person’s gender
identity may be shown by “consistent
and uniform assertion of the person’s
gender identity, or any other evidence
that the gender identity is sincerely held
as part of the person’s core identity.”
This language was deemed necessary
to avoid extending protecting for people
who might masquerade as members of
the opposite sex in order to commit
crimes. The House of Delegates then
voted on March 27 to approve the bill by
82-57, sending it on to Governor Martin
O’Malley, who supports the measure
and was expected to sign it promptly,
according to a report by Advocate.com
on March 27.
MASSACHUSETTS – The Boston
Globe (March 9) reported that
Salem, Massachusetts, has enacted
a
law
banning
discrimination
because of gender identity in public
accommodations, joining four other
municipalities in the state – Boston,
Cambridge, Amherst, and Northampton
– which acted because the amendment
to the state antidiscrimination
law adding “gender identity” had
specifically excluded protection for
public accommodations when state
legislators failed to reach agreement
on how to handle the “bathroom issue.”
Of course, opponents referred to the
measures as “bathroom bills,” showing
where their attention is focused, raising
the same old tired arguments about
men masquerading as women in order
to commit crimes in public restrooms,
a phenomenon that has not occurred
in the many jurisdictions that now ban
public accommodations discrimination
because of gender identity. One waits
impatiently for these opponents to
concede that this is really about their
own phobias aroused by thoughts of
using restroom facilities together with
transgender people.
MICHIGAN – Wayne County Executive
Robert Fricano signed an executive
order in February adding sexual
orientation and gender identity to the
county’s anti-discrimination policy,
reported the Detroit Free Press on
March 18. This made Wayne County
the third county in the state to ban such
discrimination, after Washtenaw and
Ingham counties.
LEGISLATIVE / LAW & SOCIETY
MISSISSIPPI – The city of Oxford’s
Board of Alderman voted unanimously
on March 4 to approve a resolution
to add sexual orientation and gender
identity to the city’s diversity statement.
Two other Mississippi municipalities,
Hattiesburg and Starkville, have
taken such action in recent months.
Washington Blade, March 5.
MISSISSIPPI – A bill that would have
protected businesses from liability for
refusing to serve same-sex couples
was shelved by the Mississippi House
on March 12 and sent back to a
study commission. The measure was
similar to an Arizona bill, vetoed
by the governor, that would have
insulated businesses whose owners
had religious objections to same-sex
marriage, from liability for denying
services.
Ironically, since neither
state bans discrimination because of
sexual orientation by businesses, those
suffering such discrimination do not
now have any cause of action under
state law, making clear that these laws
are “going on record in support of gaybashing” or, alternatively, “sucking up
to religious voters” measures, rather
than substantive legislation.
NEW YORK – Flying somewhat under
the radar, the New York City Council
unanimously passed a new law that
incidentally extends protection against
discrimination to more LGBT people
in the city. On March 26, the Council
approved a measure to protect unpaid
interns from discrimination, listing the
grounds contained in the city’s existing
employment discrimination ban. The
measure was introduced in response
to a federal court ruling last year that
an intern could not sue for workplace
sexual harassment, because existing
law extended only to paid employees.
Mayor Bill de Blasio had not taken a
public position on the bill, but it was
expected that he would sign it. The
measure would go into effect 60 days
after signing. New York Daily News,
Newsday, March 27.
SOUTH CAROLINA
–
South
Carolina’s House of Representatives
voted to cut $70,000 out of the
budget appropriation for two state
colleges that included LGBT-related
publications in the freshman reading
curriculum as summer reading for
English 101. Legislators made clear
that they intended to punish the
two institutions for their effrontery
in selecting materials of which the
legislators disapproved.
It is, of
course, a classic case of content based
regulation of speech, but query whether
courts would find this to be a political
decision within the spending power of
the legislature?
TEXAS
–
The
Dallas
City
Council voted 13-2 on March 5 to
approve a resolution constituting a
“comprehensive statement of support”
for the city’s LGBT employees, and
directing the city manager to address
inequalities in the city’s pension and
health care plans. Dallas Morning
News, March 6.
VIRGINIA
–
With
conflicting
decisions from federal and state courts
on the continued constitutionality of
Virginia’s much-challenged sodomy
laws, the legislature finally bowed
to reality, as the House of Delegates
voted unanimously on March 6 to
concur with a prior unanimous vote
by the Senate to revise the state’s
penal code to eliminate the contested
provision. The original repeal bill,
filed by a Republican senator, would
have eliminated the ban on consensual
sodomy between adults, but by a
quirk of wording would have retained
penalties for oral sex for 17-year-olds,
even if they were legally married to
each other, which would clearly be
unconstitutional. When this anomaly
was brought to light, the sponsor and
the relevant committee agreed on a
substitute version of the bill, which
had the support of Governor Terry
McAuliffe. Thus, more than a decade
after the Supreme Court held that
private adult consensual sodomy is
constitutionally protected, Virginia
has finally modernized its penal code
to comply with that ruling. However,
according to a report by thinkprogress.
org (March 6), twelve states still have
unconstitutional sodomy law bans
on the books, including Alabama,
Florida, Idaho, Kansas, Louisiana,
Michigan, Mississippi, North Carolina,
Oklahoma, South Carolina, Texas
and Utah. Many of those state laws
actually penalized anal and/or oral sex
for different-sex as well as same-sex
couples. Although courts are likely
to dismiss criminal charges in cases
that fall squarely within the holding of
Lawrence, the continued existence of
the statutes on the books means that
law enforcement officials may continue
to arrest people, and some prosecutors
may continue to prosecute, based on
either ignorance of the constitutional
holding or an unduly narrow view of
its scope. Thus, repeal of these laws
must remain on the agenda.
LAW & SOCIETY NOTES
THE ROMAN CATHOLIC CHURCH
SPEAKS ON UGANDA ANTIHOMOSEXUALITY LAW – Cardinal
Peter Turkson, President of the
Pontifical Council for Justice and
Peace, said that “homosexuals are not
criminals” and criticized Uganda’s new
law authorizing life imprisonment for
homosexual acts, according to a report
by the Associated Press. However,
Turkson also said that the Church
wants the international community
to continue providing financial aid
LAW & SOCIETY / INTERNATIONAL
to Uganda, which has mainly gone
to support public health systems.
The immediate response from some
countries to Uganda’s president signing
the law was denunciation accompanied
by actual or contemplated suspension
of aid, including the World Bank,
which held back on a $90 million loan
that had been previously authorized.
OFFICE OF NATIONAL AIDS
POLICY – President Barack Obama
announced on March 25 that Douglas
M. Brooks, an openly gay AfricanAmerican man living with HIV, will
be the new director of the Office of
National AIDS Policy. Brooks has
served on the President’s Advisory
Council on HIV/AIDS, and has
extensive organizational experience in
the non-profit world on related issues,
leading to unanimous approval of the
appointment by spokespersons for
AIDS policy organizations. The Office
is a component of the White House
Domestic Policy Council, making
policy recommendations on HIV/AIDS
issues and helping to coordinate the
response of federal agencies to the
ongoing HIV/AIDS epidemic.
UNITED METHODIST CHURCH –
Although the Church continues to
oppose same-sex marriages, Bishop
Martin D. McLee of New York stated
on March 10 that he would end church
trials in his region of ministers who
perform such ceremonies.
The
announcement came as McLee
approved a settlement of charges
against Dr. Thomas W. Ogletree, a
Methodist minister who incurred the
wrath of some within the denomination
by officiating the wedding of his gay
son in 2012. A trial that was to have
started on March 10 to determine
whether to terminate Ogletree’s
ministry was cancelled and McLee
agreed to drop all charges against
Ogletree, conditioned on Ogletree
participating in a dialogue about the
church and its stance on matters of
sexuality. This brought criticism from
the ministers who had filed the charges
against Ogletree, Randall C. Paige and
Roy E. Jacobsen, who predicted that this
would lead to a schism in the church.
New York Times, March 10.
WORLD VISION U.S. – The evangelical
Christian charity, which finds donors
to sponsor hungry children around the
world, is based in the state of Washington,
a marriage equality state, and decided,
after much internal debate, to announce
that unlike some other Christian
employers, they would hire Christians
who were in same-sex marriages. The
announcement by Richard Stearns, the
organization’s president, brought down
a storm of adverse comment from antigay so-called “Christians,” to such an
extent that the organization rescinded
its announcement after hearing that
some donors were withdrawing from
sponsoring children. The organization
called their prior announcement a
“mistake” and pleaded for forgiveness,
according to a report in the New York
Times on March 28.
INTERNATIONAL NOTES
CONGO – The Republic of Congo is
one of the minority of African states
that does not have an express ban on
consensual gay sex in its criminal code,
but a member of the Parliament, Steve
Mbikayi, has introduced a bill loosely
modeled on the recently enacted Uganda
Anti-Homosexuality Law and toured
the country in February seeking to win
popular support for the bill, according
to a March 12 report on allafrica.com.
The penalties proposed by Mbikayi’s
bill are not as drastic as those enacted
in Uganda. Attempts to pass anti-gay
legislation in Congo have faltered in the
past.
DOMINICAN REPUBLIC – The
Vatican’s envoy to the Dominican
Republic, in charge of arranging a
reception for the diplomatic corps
with the Dominican president and his
wife, caused a diplomatic disruption
by not inviting the same-sex spouse
of the new U.S. Ambassador, James
Brewster. The envoy, Jude Thaddeus
Okolo, sent a “private letter” to the
diplomatic corps in the country
announcing that they were not inviting
Bob Satawake because this would
violate the nation’s constitutional ban
on same-sex marriages. Diplomats
from many countries reacted by
stating they would not attend the
reception if Mr. Satawake was
excluded. The event was finally held
with Mr. Satawake in attendance.
At the same time, a bill drafted by a
committee of the legislature headed
by the vice president proposed and
then swiftly withdrew under heavy
criticism a proposed change to the
nation’s “Family Code” that would
have specified the “traditional
Catholic family model.” blabbeando.
blogspot.com, March 25.
ETHIOPIA – As part of the antigay panic now sweeping Africa, the
Ethiopian parliament is expected to
pass a bill endorsed by the cabinet that
would put homosexuality on the list of
“non-pardonable” offenses under the
country’s amnesty law. This means
that individuals convicted of engaging
in same-sex conduct, which carried a
sentence of up to 15 years, could never
be eligible for a presidential pardon.
The same restriction would apply to
those convicted of infecting somebody
with HIV, which carries a 25 year
jail term. Unlike the United States,
where the president pardons relatively
few people, Ethiopian presidents
have customary followed a liberal
pardon policy, releasing thousands
of prisoners each year. i newspaper
(UK), March 26.
INTERNATIONAL
GIBRALTAR – The parliament voted
on March 21 to approve the Civil
Partnership Act 2014, which will make
civil partnerships available to both
same-sex and different-sex couples
and open up the possibility of joint
adoptions by same-sex couples who are
civil partners, codifying recent judicial
developments. Full rights in areas such
as pension, allowances, and taxes will
be available on the same basis as they
apply to marriages. The law came into
force on March 28, and it was expected
that the government would have
established the formal registry process
within six weeks of enactment.
ISRAEL – The Knesset (Parliament)
voted on March 18 in favor of a bill
prohibiting discrimination in schools
against students based on their sexual
orientation or gender identity. This
was said to be the first time that Israel
has legislated to protect transgender
people from discrimination. Sexual
orientation discrimination claims
in other contexts have long been
actionable. The vote was reportedly
25-2. GLAAD reported that research
by Israel’s Gay Youth Organization
had found that 52% of LGBT youth in
Israel have faced hate speech, and 84%
have reported that Hebrew words for
gay and lesbian are frequently used
as epithets. Students have reported
significant harassment in schools,
and the failure of teacher to respond
or take action to protect students.
Indeed, it was reported that some
teachers also resort to hate speech
against LGBT students. glaad.org,
bilerico.com, March 23.
LEBANON – For the second time,
a judge has ruled that a criminal
law forbidding “unnatural sexual
intercourse” cannot be used to
prosecute
consensual
same-sex
conduct. According to a March 5 article
in Daily Star, Judge Naji al-Dahdah had
acquitted a transsexual woman from
charges under Article 534 of Lebanon’s
penal code for having sex with a man,
which was characterized as a “samesex relationship.” The case was tried
in Jdeideh and concluded on January
28. The defendant was described as
male on her “personal status registry”
but identified as female and had sex
reassignment surgery in the 1990s.
The judge relied on a December 2009
ruling by Judge Mounir Suleiman, who
held that homosexual relations were
not “against nature” and thus could
not be prosecuted under Article 534.
Suleiman wrote, “Man is part of nature
and is one of its elements, so it cannot
be said that any one of his practices or
any one of his behaviors goes against
nature, even if it is criminal behavior,
because it is nature’s ruling.” The more
recent case is believed to be the first
involving a transsexual. In addition,
according to the article, Judge Dahdah
said “that a person’s gender should
not simply be based on their personal
status registry document, but also on
their outward physical appearance
and self-perception.” The article was
itself based on reporting in a quarterly
magazine, The Legal Agenda.
MALAYSIA – In a continued use of
sodomy charges for political purposes,
it is reported that Anwar Ibrahim,
leader of the opposition to the present
government, has again been sentenced
to jail on sodomy charges, overturning
an earlier acquittal, and he again vowed
to appeal his conviction. Anwar claims
the charges are part of a political smear
campaign to keep him off the ballot
in a pending parliamentary election.
Independent (UK), March 8.
NIGERIA – The Washington Post
reported on March 6 that four young
men who were convicted of engaging
in gay sex were publicly whipped as
punishment that day in an Islamic court
in Brauchi city in northern Nigeria, and
would face further physical punishment
of they did not pay a fine imposed by
the judge. They were sentenced to 15
strokes and a year’s imprisonment if
they could not pay the fine. A gay rights
proponent told the Associated Press’s
local reporter that the men had been
beaten by police agents to get them to
confess, and their families had declined
an offer of legal representation, hoping
they could negotiate with the judge.
This was the trial that had been delayed
from January, when a crowd tried to
stone the accused men outside the court
and demanded that the judge impose
the death sentence. Islamic Shariah
law followed in some areas of northern
Nigeria mandates death by stoning
or lethal injection for homosexual
conduct, but it is reported that such a
sentence has never been carried out.
The hearing on March 6 was held in
secret to avoid disruption, the results
only being announced later.
PORTUGAL – Although same-sex
partners can marry in Portugal, the
marriage legislation did not authorize
then to adopt children as partners.
Port uguese-A merica n-Journ al.
com reported on March 17 that the
Portuguese Parliament had rejected
a provision “co-parenting” bill that
would have allowed same-sex couples
to adopt children jointly if they were
married or cohabiting. However, since
2013 second-parent adoption has been
legal in Portugal, so same-sex couples
may adopt through a two-step process.
Gay rights groups in the country
indicated that they might pursue an
action in the European Court of Human
Rights, claiming that the current ban
on same-sex parent adoptions violates
their individual rights.
RUSSIA – The Tushinsky District
Court in Moscow ruled on March 17
against a defamation claim frilled by
INTERNATIONAL
LGBT activist Nikolay Bayev against
actor-showman Ivan Okhlobystin.
Bayev claimed to have suffered severe
emotional distress as a result of a
“homophobic rant” by Okhlobystin
including the statement that “gays
should be burned alive in ovens,” and
a call to President Vladimir Putin to
reinstate criminal liability for sodomy.
rapsinews.com, March 17.
SOUTH AFRICA – The South
Africa Human Rights Commission
is investigating the Kilcairn Farm,
which rents itself as a wedding venue,
for cancelling a ceremony that had
been booked for a lesbian couple’s
wedding, according to the Pretoria
News (March 28). Leanne BrownWaterson and her partner Christelle
were initially welcomed by Kilcairn’s
manager, Cara King, but then King
communicated to them that the owner
of the farm was opposed to same-sex
weddings, and believed that as a private
entity it was privileged to decline their
business. South Africa’s laws forbid
discrimination because of sexual
orientation by businesses, however, and
at least one constitutional law expert,
Perre de Vos, told the newspaper that
private business owners “had no right
to discriminate against anyone.”
TAIWAN (REPUBLIC OF CHINA) –
The Taipei High Administrative Court
has ruled in favor of a government
agency that refused to register a
couple’s same-sex marriage. The
court noted a law providing that “a
marriage contract should be between
a man and woman.” thestandard.
com.hk, March 28.
UGANDA – Reacting to recent
enactment of the Anti-Homosexuality
Act, the Obama Administration
announced several concrete actions,
including a significant reduction in a
grant to the Inter-Religious Council
of Uganda for HIV prevention efforts,
redirecting a grant that was to go to
the country’s tourism and biodiversity
promotion programs instead to nongovernmental organizations, suspending
a planned HIV medical study at a
Ugandan university that was to have
collaborated with the U.S. Centers for
Disease Control and Prevention (citing
concerns for the safety of the study’s
researchers and participants in light of
the animus against gay people stirred
up by the new law), and revocation of
invitations to various Ugandan military
and police officials who were to have
come to the U.S. for various programs,
as well as relocation of certain events
that had been scheduled by the U.S.
Defense Department to take place in
Uganda this spring. Advocate.com,
March 25. * * * The Associated Press
reported on March 11 that a group of
human rights activists, acting under
the name Civil Society Coalition on
Human Rights and Constitutional Law,
have instituted a lawsuit challenging
the constitutionality of the recentlyenacted Anti-Homosexuality Law.
They were seeking an interim order
to stop the police from enforcing the
law, according to a lawyer who helped
to draft their petition, and also sought
an order barring local newspaper
from printing the names of known or
suspected homosexuals. The lawyer
predicted that the court would take
several months before responding to the
petition because of the huge caseloads
faced by the understaffed Ugandan
court system.
UNITED KINGDOM – Same-sex
couples in England and Wales began
marrying immediately after midnight
the morning of March 29, as the
marriage equality laws adopted last
year went into effect. Queen Elizabeth
gave royal assent to the recently passed
marriage equality bill in Scotland, and it
will go into effect before the end of 2014.
* * * Justin Welby, the Archbishop of
Canterbury and ecclesiastic head of the
Church of England, indicated on March
28 that the church would pragmatically
accept the change in law. “I think the
Church has reacted by fully accepting
that it’s the law, and should react on
Saturday [March 29] by continuing to
demonstrate in word and action the love
of Christ for every human being.” It
was reported that at least seven clergy
couples were planning to marry their
partners, and that some were offering
to bless gay marriages, although the
Church had not formally approved these
actions. The text will come, of course,
when some in the Church attempt to
impose discipline upon clergy in these
circumstances. Daily Mail, March 28.
* * * The Canberra Times (March 29)
reported that British subjects in Australia
could marry same-sex partners at the
U.K.’s diplomatic facilities in major
Australian cities. A spokesman for the
Australian government confirmed that
the government had no objections “if at
least one person of the marrying couple
is a British national.” The resulting
marriages will be recognized in the
U.K., but not in Australia. ON March
28, Greens senator Sarah HansonYoung announced that she would
reintroduce in the new parliament a
bill to recognize foreign same-sex
marriages in Australia. The government
has remained opposed to holding a free
vote in the parliament on a bill to allow
same-sex marriages in Australia. The
prime minister is opposed, although
there are members of almost every
group in the parliament that would
support such a measure.
UNITED KINGDOM – A heterosexual
married couple who operate a bed &
breakfast establishment are asking
the European Court of Human Rights
in Strasbourg to vindicate their claim
that they may refuse on religious
grounds to rent double rooms to samesex couples. Sue and Jeff Green had
INT’L & PROFESSIONAL
received a warning from the Equality
and Human Rights Commission that
their policy of not renting double rooms
to such couples violated U.K. law,
following upon a Supreme Court ruling
to that effect against other Christian
hoteliers. The Greens then altered
their Llandrindod Wells B&B to afford
only single room accommodations,
as a result of which they have lost
considerable business from differentsex couples, but in response to this move
the EHRC has backed off. “We have
no prospect of success in the British
courts so we have decided to take this
to Europe,” said Green, arguing that the
European Convention on Human Rights
protection for free exercise of religion
should shield their business from
having to afford services that offend the
owners’ religious beliefs.
UNITED KINGDOM – The Daily Mail
(March 28) reported about ongoing
litigation between former lesbian
partners over children they had while
they were together. One is the genetic
mother, having supplied the eggs for
their twins, and the other was the birth
mother. Last August, Judge Helen
Black awarded sole residential custody
to the birth mother, due to her concerns
about how the genetic mother “would
operate with her parental responsibility
if given it.” The Court of Appeal upheld
a challenge by the genetic mother, and
sent the case back to Judge Black, with
a direction to consider whether a shared
residence order was appropriate, thus
granting the genetic mother formal
parental responsibility. The two women
met in the 1990s and had an intimate
relationship. The twins were born
in 2008. The women’s relationship
eventually became platonic and they
ceased living together in October 2012,
when the genetic mother was pregnant
with a fertilized embryo left over from
the insemination process four years
earlier. She gave birth to a daughter
in November 2012, for whom she is
considered the legal mother as both
genetic and birth mother. The twins
were conceived before a 2008 enactment
under which both of the women would
have been considered legal parents.
UNITED KINGDOM – Home Secretary
Teresa May, reacting to reports about
inappropriate investigative methods
by asylum adjudicators, has ordered
a review of asylum claims by gay and
lesbian applicants. There were reports
that applicants required to prove that
they were gay had submitted video
evidence in the form of depictions of
sexual acts. i Newspaper, March 29.
No word yet when these will be made
available to the public via youtube.com.
PROFESSIONAL NOTES
The United States Senate voted
unanimously on March 12 to confirm
openly-gay JUDITH LEVY for a seat on
the U.S. District Court for the Eastern
District of Michigan. Levy, a University
of Michigan Law School graduate,
previously worked as an attorney at
the Equal Employment Opportunity
Commission and in the civil rights unit
for the U.S. Attorney’s Office in the
Eastern District of Michigan. Ironically,
she was confirmed the week before
the judge for whom she had clerked in
that district, Bernard Friedman, issued
his ruling in a marriage equality case,
DeBoer v. Snyder (see Michigan Ruling
Adds to Unbroken String of Marriage
Equality Victories, pg. 131).
On March 12, the Senate Judiciary
Committee voted unanimously to
recommend the confirmation of
MICHELLE YANDLE, an openlylesbian African American lawyer who
was nominated by President Obama for
a seat on the U.S. District Court for the
Southern District of Illinois.
“Med. Questionaire” cont. from pg. 146
Lundy points to other examples
of employees who were fired for
falsifying documents, but whom
Phillips could have wanted to fire for
more self-serving or discriminatory
reasons. The court finds that Lundy
has presented enough evidence to
create a question of fact as to whether
Phillips is using this company rule to
hide a discriminatory purpose.”
Phillips also disputed Lundy’s
contention that the timing of his
discharge – immediately after
Phillips learned that he was HIVpositive – supports the inference of
discriminatory intent in this case,
arguing that it acted as soon as it knew
that Lundy had falsified the medical
questionnaire, thus violating a company
rule. Cain pointed out that Lundy had
alleged that “Phillips employees made
comments about his HIV status at his
termination meeting,” while Phillips
had dispute his assertion, so there
was an issue of fact as to the reason
for Phillips’ actions. Finding that “the
court is left with two different sets of
facts and a credibility dispute,” Cain
pointed out that in deciding the motion
for summary judgment, “if the court
accepts Lundy’s set of facts as true,
as it must at this stage, then there is a
reasonable inference of discrimination,
or at least a disputed issue of material
fact.” Thus, the case was not suitable
for summary judgment. Using the
same reasoning, Cain rejected Phillips’
argument that Lundy had presented
insufficient evidence of pretext to
defeat the summary judgment motion.
“If Lundy’s termination was truly
for falsifying documentation, then
the exact nature of his disease would
not be relevant or warrant comment,”
so Lundy’s allegations about the
comments were sufficient to create a
factual issue relevant to the pretext
question.
Lundy is represented by John G.
Reckenbeil of Spartanburg, South
Carolina, who is also involved in
marriage equality litigation in South
Carolina (see Marriage Equality
Notes, pg. 154) ■
PUBLICATIONS NOTED
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Barnhardt, Melissa Lader, Jessica M.
Lillesand, and Denise A. Lettau, A Holistic
Approach to Planning for the Aging SameSex Couples: Special Considerations in Light
of U.S. v. Windsor Decision, 26 St. Thomas
L. Rev. 1 (Fall 2013).
Begley, Thomas D., Jr., and Andrew H.
Hook, Post-Windsor Planning: A New World
of Celebration and Domicile, 41 Estate
Planning 44 (April 2014).
Brandon, Mark E., Marriage in America,
49 Tulsa L. Rev. 327 (Winter 2013) (review
of Priscilla Yamin, American Marriage: A
Political Institution (2012), and Elizabeth
Brake, Minimizing Marriage: Marriage,
Morality, and the Law (2012)).
Burke, Thomas F., From the Courthouse to
the Chalkboard, 49 Tulsa L. Rev. 305 (Winter
2013) (review of Klarman, From the Closet
to the Altar).
Buzuvis, Erin, “On the Basis of Sex”: Using
Title IX to Protect Transgender Students
from Discrimination in Education, 28 Wis.
J.L. Gender & Soc’y 219 (Fall 2013).
Caggiano,
Alexandra,
Transgender
Inopportunity and Inequality: Evaluating
the Crossroads Between Immigration and
Transgender Individuals, 37 Seattle U. L.
Rev. 813 (Winter 2014).
Colling, Jacob, Approaching LGBTQ
Students’ Ability to Access LGBTQ Websites
in Public Schools From a First Amendment
and Public Policy Perspective, 28 Wis. J.L.
Gender & Soc’y 347 (Fall 2013).
Domino, John C., The Jurisprudence of
Texas Supreme Court Justice Robert A.
“Bob” Gammage: A Legacy of Civil Rights
& Liberties, 55 S. Tex. L. Rev. 27 (Fall 2013)
(includes comment on Justice Gammage’s
dissent in Morales, a case in which the Texas
Supreme Court reversed the intermediate
appellate court’s decision striking down
the state’s sodomy law on jurisdictional
grounds; Gammage argued that the majority
misperceived the harm at issue in deciding
that the statute could be challenged only in a
criminal prosecution).
Elliott, Heather, Further Standing Lessons,
89 Ind. L.J. Supplement 17 (2014) (includes
discussion of standing holdings in U.S. v.
Windsor and Hollingsworth v. Perry, the
Supreme Court’s 2013 marriage equality
case rulings).
Emens, Elizabeth F., Compulsory Sexuality,
66 Stan. L. Rev. 303 (Feb. 2014) (asexuality
and the law).
Entrikin, J. Lyn, The Right of Privacy in
Arkansas: A Progressive State, 35 U. Ark.
Little Rock L. Rev. 439 (Spring 2013).
Fisher, Hallie, Special Considerations
in Estate Planning for Same-Sex and
Unmarried Couples, 21 Duke J. Gender L. &
Pol’y 177 (Fall 2013).
Gallo, Daniele, Luca Pladini, and Pietro
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
Pustorino (editors), Same-Sex Couples before
National, Supranational and International
Jurisdictions (2014 - Springer.com [ebook
version available]) (essays by national and
international legal experts).
Gardina, Jackie, The Questions That United
States v. Windsor Didn’t Answer, 33-MAR
Am. Bankr. Inst. J. 38 (March 2014).
Grove, Tara Leigh, and Neal Devins,
Congress’s (Limited) Power to Represent
Itself in Court, 99 Cornell L. Rev. 571 (March
2014) (Did the House Bipartisan Legal
Advisory Committee really have standing in
U.S. v. Windsor?).
Gupta, Anjum, The New Nexus, 85 U. Colo.
L. Rev. 377 (Spring 2014) (critique of nexus
requirement in U.S. asylum law; addresses
asylum claims of LGBT refugees).
Herr, David, and Steve Baicker-McKee, JuryTrials – Batson Analysis, 29 No. 3 Federal
Litigator 17 (March 2014) (summarizes 9th
Circuit decision in SmithKline v. Beecham,
eliminating peremptory challenges intended
to remove jurors because of their sexual
orientation).
Hoad, Neville, Sovereign Feeling: The South
African Constitution, HIV/AIDS, and the
Right to Sexual Orientation and Dignity, 18
UCLA J. Int’l L. & Foreign Aff. 125 (Fall
2013).
Howard, A. E. Dick, Ten Things the 2012-13
Term Tells Us About the Roberts Court, 99
Va. L. Rev. Online 48 (Oct. 2013).
Huntley, Sarah, International Love and
Unlawful Presence: A New Challenge for
Same-Sex Binational Couples After the
Repeal of the Defense of Marriage Act, 20
Sw. J. Int’l L. 201 (2013).
Iglesias, Tim, Does Fair Housing Law Apply
to “Shared Living Situations”? Or the
Trouble with Roommate, 22 J. Affordable
Housing & Community Dev. L. 111 (2014).
Infanti, Anthony C., LGBT Families, Tax
Nothings, 17 J. Gender Race & Just. 35
(Winter 2014).
Johnson, Elizabeth M., Buyers Without
Remorse: Ending the Discriminatory
Enforcement of Prostitution Laws, 92 Tex. L.
Rev. 717 (Feb. 2014).
Lee, Jason, Too Cruel for School: LGBT
Bullying, Noncognitive Skill Development,
and the Educational Rights of Students, 49
Harv. C.R.-C.L. L. Rev. 261 (Winter 2014).
Makovsky, Daniel, The New “Illegitimate
Child”: How Parochial Schools are Imputing
Discrimination Against Homosexuals to
Children of Homosexual Parents and Getting
Away With It, 26 J. Civ. Rts. & Econ. Dev.
965 (Summer 2013).
Margalit, Yehezkel, Orrie Levy and John
Loike, The New Frontier of Advanced
Reproductive Technology: Reevaluating
Modern Legal Parenthood, 37 Harv. J. L. &
Gender 107 (Winter 2014
27. Masino, Anthony, DOMA: How Tax
Compliance Post Windsor Has Created A
Fiscal Time Bomb for Jurisdictions that
Deny Same-Sex Marriage, 15 J. Accounting,
Ethics & Pub. Pol’y No. 2 (2014).
28. Morben, Bryan, The Fight Against
Oppression in the Digital Age: Restructuring
Minnesota’s Cyberbullying Law to Get with
the Battle, 15 Minn. J.L. Sci. & Tech. 689
(Winter 2014).
29. NeJaime, Douglas, Before Marriage:
The Unexplored History of Nonmarital
Recognition and its Relationship to Marriage,
102 Cal. L. Rev. 87 (Feb. 2014) (explores
tension between other forms of relationship
recognition and marriage in probing history
of the marriage equality movement).
30. Niedwiecki, Anthony, Save Our Children:
Overcoming the Narrative that Gays and
Lesbians Are Harmful to Children, 21 Duke
J. Gender L. & Pol’y 125 (Fall 2013).
31. Prescott, Dana E., The Supreme Court in
United States v. Windsor: Why the “Death”
of Fungible Federalism After a Century of
Convenience?, 26 J. Am. Acad. Matrim. Law.
51 (2013) (critical of the Supreme Court’s
federalism analysis in U.S. v. Windsor).
32. Rao,
Devi
M.,
Gender
Identity
Discrimination is Sex Discrimination:
Protection Transgender Students from
Bullying and Harassment Using Title IX, 28
Wis. J.L. Gender & Soc’y 245 (Fall 2013).
33. Recent Case, Constitutional Law – First
Amendment – New Mexico Supreme
Court Holds That Application of Public
Accommodations
Law
to
Wedding
Photography Company Does Not Violate
First Amendment Speech Protections –
Elane Photography, LLC v. Willock, 309 P.
3d 53 (N.M. 2013), 127 Harv. L. Rev. 1485
(March 2014).
34. Roche, Susan A., Maneuvering Immigration
Pitfalls in Family Court: What Family Law
Attorneys Should Know in Cases With
Noncitizen Parties, 26 J. Am. Acad. Matrim.
Law. 79 (2013).
35. Romero, Julio C., A Gender-Neutral Reading
of New Mexico’s Uniform Parentage
Act: Protecting New Mexican Families
Regardless of Sexuality, 43 N.M. L. Rev. 567
(Fall 2013).
36. Rubenstein, William, Carlos A. Ball, Jane
Schacter & Douglas NeJaime, Cases and
Materials on Sexual Orientation and the
Law (West, 5th edition, publication date
April 22, 2014).
37. Sepper, Elizabeth, Doctoring Discrimination
in the Same-Sex Marriage Debates, 89 Ind.
L.J. 703 (Spring 2014).
38. Shaw, Katherine, Constitutional NonDefense in the States, 114 Colum. L. Rev. 213
(March 2014) (with increasing numbers of
governors and attorneys general refusing to
defend state bans on same-sex marriage, the
Law Notes
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Law Notes
Podcast
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39.
40.
41.
42.
43.
44.
45.
question of their authority to do so assumes
importance).
Stoddard, Thayne D., Male Prostitution
& Equal Protection: An Enforcement
Dilemma, 21 Duke J. Gender L. & Pol’y 227
(Fall 2013) (argues that disproportionate
targeting of female prostitution under genderneutral prostitution statutes raises equal
protection issues; suggests police should
step up enforcement of statutes against male
prostitution to remedy the disparity).
Strasser, Mark, When a Baker Summary
Dismissal Becomes Stale: On Same-Sex
Marriage Bans and Federal Constitutional
Guarantees, 17 J. Gender Race & Just.
137(Winter 2014).
Turner, Ilona M., Title IX’s Protections for
Transgender Student Athletes, 28 Wis. J.L.
Weiss, Jillian T., Protection Transgender
Students: Application of Title IX to Gender
Identity or Expression and the Constitutional
Right to Gender Autonomy, 28 Wis. J.L.
Wintemute,
Robert,
Accommodating
Religious Beliefs: Harm, Clothing or
Symbols, and Refusals to Serve Others, 77(2)
Modern L. Rev. 223-253 (2014).
Woodham, Matthew, Constitutional Law
– Equal Protection – DOMA’s Refusal
to Recognie State-Sanctioned Same-Sex
Marriages for the Purposes of Federal Law
Deemed Unconstitutional. United States v.
Windsor, 133 S. Ct. 2675, 44 Cumb. L. Rev.
169 (2013).
Young, Ernest A., United States v. Windsor
and the Role of State Law in Defining
Rights Claims, 99 Va. L. Rev. Online 39
(September 2013).
EDITOR’S NOTES
This proud, monthly publication
is edited and chieﬂy written by
Professor Arthur Leonard of New
York Law School, with a staff of
volunteer writers consisting of
lawyers, law school graduates,
current law students, and legal
workers.
All points of view expressed in
Lesbian/Gay Law Notes are those
of the author, and are not ofﬁcial
positions of LeGaL - The LGBT
Bar Association of Greater New
York or the LeGaL Foundation.
All comments in Publications Noted
are attributable to the Editor.
Correspondence pertinent to issues
covered in Lesbian/Gay Law Notes
is welcome and will be published
subject to editing. Please submit all
correspondence to [email protected].
Check out the Lesbian/Gay
Law Notes Podcast each month
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York Law School Professor Art
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